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Nathan Newman on May 22, 2008 - 8:52am
Over the past decade, elections for state high court seats have gone from sleepy, mildly partisan affairs to major political battles with huge campaign spending, millions in independent special interest advertising, and misleading and negative attacks in the forefront. TV advertising is now apart of virtually all (91%) contested state supreme court elections, up from about one in five elections in 2000. And in 2006 business groups were the source of more than 90% of those ads. Business groups are also the source of almost half of all campaign contributions in these races.
The amount of money now entering these races is staggering. Between 1999 and 2007 candidates for state supreme courts raised over $165 million dollars. This is a situation which troubles Americans greatly, even at the beginning of the decade 84 percent of voters and 79 percent of judges hd concern about special interest groups influencing judicial elections.
Wisconsin Business Groups Spend Millions to Hijack the State's Supreme Court: After corporate defeat in consumer safety litigation, business groups in Wisconsin have poured millions in the past two election cycles to defeat two members of the Wisconsin Supreme Court and replace them with pro-business jurists. The court has now been switched from having a majority of pro-consumer jurists to a majority that supports corporate interests over those of individuals.
Both races have seen more third party spending than that spent by the candidates themselves and have been marked by particularly harsh and deceptive advertisements. The first of the two brutal and exceedingly expensive campaigns led the entire supreme court to issue a letter last year supporting public financing of supreme court elections -- even signed by the member recently elected with the help of massive business lobby spending. Soon after her election that justice, Annette Ziegler, paid fines and was recommended for censure for previously hearing cases involving a company her husband helped manage.
West Virginia's Chief Justice Taken Down by Influence Scandal: West Virginia Chief Justice Elliott Maynard recently lost his re-election bid after a scandal erupted over pictures of him vacationing in Monte Carlo with the CEO of Massey Energy at the same time the company was appealing a $240 million jury verdict to the high court. The chief justice originally refused to recuse himself from the case, but finally relented after the petitioners obtained a rehearing. Massey Energy is a controversial, union busting coal company with considerable power in the state.
Systematically Driving Corporate Policy Through the Courts: As we highlighted in a Dispatch last year, starting in the late 1990s, Karl Rove worked with politically-aligned business interests to begin a systematic takeover of state courts to undermine consumer rights and limit corporate liability for harm to consumers. In 2004, for example, business groups spent $21.5 million on state supreme court elections, eclipsing the amount spent by plaintiffs' attorneys and their allies, with courts including Texas and Alabama shifting to the corporate defendants' side. In 2005-2006 business groups contributed twice as much, $15.2 million, directly to supreme court candidates than lawyers did.
Strategies for Protecting the Judiciary: Many states have avoided problems like those is Wisconsin and West Virginia by implementing basic reforms to insulate the Judiciary from corporate special interest spending:
- Public Financing: North Carolina and New Mexico now have full public financing of high court campaigns. New Mexico's system is brand new, but in North Carolina public financing has had a transformative effect on judicial elections. Special interest and attorney contributions have been driven out of the process, from 73% of non-family funds in 2002 to 14% in 2004. Over two-thirds of judicial candidates now run for office under public financing. The North Carolina system is immensely popular with the public, a year after it was implemented 78% of voters approved of maintaining the practice. Public financing is also supported by the American Bar Association, which adopted it as an official policy in 2002.
- Merit Selection: Many states have an independent merit selection process for appointing justices combined with retention elections. This so-called "Missouri plan" insulates the judiciary from special-interest dominated election campaigns while still allowing for voters to exert some democratic control over the judiciary. Such systems have almost uniformly been free of expensive campaign spending and politicized campaigns and theses systems instill confidence in the public. In Missouri, 68 percent of voters trust the Missouri Supreme Court to adhere to the letter of the law rather than their own political beliefs.
- Recusal Standards: Establishing better standards for when a justice should or must recuse themselves is another way to help limit the influence of big donors. It also reduces the incentive for special interests to insert themselves in judicial campaigns because their favored justice won't be in a position to support them in any dispute before the court.
With corporate special interest money increasingly seeking to control judicial outcomes, states with elected courts have a number of options for helping to reduce the avenues for money-dominated elections to distort justice.