Judicial Elections Public Financing: Balancing Independent Courts and Voter Choice

Once the sleepy backwater of electoral politics, judicial elections have recently become a battleground where right wing and corporate groups spend large sums to fill the courts with jurists who will support their interests.  This is perhaps the most troubling example of money corrupting our politics, because instead of pay-to-play politics it gives us pay-to-win justice.  The independence of the judiciary simply cannot be maintained in an environment where jurists are competing for votes in high-priced, bare-knuckle political brawls.  

Those closest to the process are the most aware of the problems that have infused judicial elections.  The American Bar Association itself has endorsed public financing of judicial campaigns [1].  Increasingly, judges are following suit and suggesting a variety of ways to get the money out of judicial politics, including public financing.  The group that is leading the effort to reform judicial elections is the Justice at Stake Campaign [2].  Much of the information in this Dispatch is derived from their reports, and legislators and advocates looking to bolster judicial independence in their states will find their resources and assistance invaluable.

For Many Election Cycles State Courts have been Under Attack by the Right

As we've highlighted [3] before, corporate groups, at the behest and with the support of right wing operatives such as Karl Rove, began to shift resources into state court elections in the 1990s after they realized that these races would be the more favorable battleground on which to shift the legal landscape in favor of their anti-consumer agenda.  With a relatively small investment compared with what they were spending to push their views at the federal level, they could easily overwhelm the spending of pro-consumer jurists and interest in the states.  While the costs would be low (in relative terms, though the actual amounts spent are in the tens of millions) the reward would be great - by flipping the state high courts to business supporters they would save themselves considerable money that would otherwise have been spent in court fighting product liability and other suits.

By the end of the decade the right wing had scored significant victories in several states, including changing the entire make-up of the Texas Supreme Court.  They were so successful that Business Week ran a cover story titled "How Business Trounced The Trial Lawyers [4]."  But while some of the races in the 1990's still hold records for judicial campaign spending, recent elections have also seen breathtaking amounts spent on campaigns.  Through the first week of October, $7.7 million had been spent on supreme court campaigns this year.  Perhaps most tellingly, these high priced races have spread out from a few hot spots and now the vast majority of high court campaigns involve television advertising, a reverse from historical norms where only very few judicial campaign battles made their way to television.  And while some states that saw incredible spending in past years have now quieted down, that appears to be because pro-business jurists have taken over those courts and have built huge campaign war chests that discourage any potential rivals.

Here are some recent events from states that currently find themselves in battles over the composition of their judiciary:

Wisconsin:  After corporate defeat in consumer safety litigation, business groups in Wisconsin poured [5]millions [6] 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 switched from having a majority of pro-consumer jurists to a majority that supports corporate interests. In both races  third party's spent more [7] than what was spent directly by the candidates.  Additionally, advertisements associated with the races have been particularly harsh and deceptive [8]. 

The first of the two brutal and exceedingly expensive campaigns led the entire supreme court to issue a letter [9] last year supporting public financing of supreme court elections -- even signed by the member recently elected due to  massive business lobby spending.  Soon after her election, that justice, Annette Ziegler, paid fines [10] and was recommended for censure for previously hearing cases involving a company her husband helped manage.  The justice who won the second of these races faces a complaint filed against him by the state's Judicial Commission, which has found probable cause [11] to believe he knowingly lied about his opponent when he ran an ad falsely claiming that he was responsible for the release of a rapist.

West Virginia:  Last spring, West Virginia Chief Justice Elliott Maynard lost [12] 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 [13].  Massey Energy is a controversial, union busting [14] coal company with considerable power in the state.

Another jurist on the same court, Brent D. Benjamin, has also become embroiled in controversy after he cast the deciding vote in the Massey Energy case that the Chief Justice eventually recused himself from.  Justice Benjamin was the beneficiary of over $3 million dollars in independent campaign spending from Massey CEO Don Blankenship in 2004.  The petitioner in the case, Hugh Caperton, a businessman represented by former U.S. Solicitor General Theodore B. Olson, is arguing that his right to an impartial hearing was denied because of his opponent’s assistance to Justice Benjamin’s campaign.  A decision by the US Supreme Court on whether they will agree to hear Caperton's appeal is imminent.

Alabama:  A series of damage awards that were substantially above national averages in the early 1980s led the legislature to enact legislation tightly restricting awards in tort cases.  When Alabama's high court subsequently struck down that law, elections became a battleground between tort reformers (primarily the Business Council of Alabama) and pro-consumer groups (primarily the Alabama Trial Lawyers Association).  This ongoing battle has brought the cost of elections to record levels - between 1993 and 2006 state Supreme Court candidates raised $54 million, including over $13 million in the 2005-2006 election cycle.

The Public is Losing Faith in the Independence of the Judiciary in Many States With Judicial Elections

The reaction that voters are having to the increased expense and negativity of judicial campaigns is no more subtle than the campaigns themselves.  Voters are more and more concerned that justice is being undermined as special interests fund judicial campaigns.  Nationally, three-quarters of Americans believe that campaign contributions affect judges' decisions.  According to poll results compiled by the American Judicature Society [15], in states with high profile races the numbers are sometimes more stark:

• Wisconsin, 2008 - 65% of Wisconsin voters supported a plan to offer public financing to qualified supreme court candidates. 77% agreed that the legislature and the governor needed to take action on judicial campaign reform before the next election.
• Minnesota, 2008 - 59% of Minnesotans agreed that campaign contributions affect the decisions of Minnesota judges. 77% were concerned about judicial candidates having to raise campaign funds, run TV ads, and seek political party and special interest support.
• New York, 2003 - 83% of New Yorkers believed that campaign contributions have some or a great deal of influence on judicial decisions, and 87% stated that judges should not be allowed to hear cases involving campaign contributors. 79% of voters believed that having to run for reelection has at least some influence on judges' decisions.
• Idaho, 2002 - 67% of Idaho voters believed that judges' decisions were influenced by campaign contributions. 40% indicated that judicial campaigns had gotten worse since 1998.  60% favored publicly financed elections.
• Illinois 2002 - More than 85% of voters believed campaign contributions influence judicial decisions. Three out of four voters favored limits on campaign contributions to judicial candidates, and over 60% supported a voluntary system of public financing of judicial campaigns.
• Texas, 2002 - 77% of voters believed campaign contributions to judges had a "great deal" or a "fair amount" of influence on their decisions. 73% favored a public financing proposal for judicial elections.

The other group that is becoming concerned is judges themselves:

• California, 2001 - 87% of judges expressed concern that, because voters had little information about judicial candidates, judges were selected for reasons other than their qualifications. 53% supported a generic proposal for public financing of judicial campaigns.
• Florida, 2001 - 68% said they were under pressure to raise money for their campaigns during election years, and 30% believed campaign contributions made to judges have at least some influence on their decisions. 56% supported a generic proposal for public financing of judicial elections.
• Illinois, 2001 - 72% of Illinois judges believed that the tone and conduct of judicial campaigns had gotten worse over the last five years. 69% supported a generic proposal for public financing of judicial campaigns. 91% were concerned that, because voters have little information about judicial candidates, judges are often selected for reasons other than their qualifications.
• New York, 2001 - 52% of New York judges reported that they were under pressure to raise campaign funds during election years, 68% strongly supported disclosure of campaign contributions, and nearly 74% favored a generic proposal for public financing of judicial elections.
• Pennsylvania, 2001 - 64% of Pennsylvania judges reported being dissatisfied with the tone and conduct of judicial campaigns, and 69% indicated that the situation had gotten worse over the past five years. 72% expressed concern that special interests were trying to use the courts to shape policy.

However, these views do not mean that people in states with elected judges believe that judicial appointment would be an improvement.  Voters in these states strongly support judicial elections, even as they become more disillusioned with the process as it is being conduct in their state.  This is one reason that PSN sees public financing as a promising remedy to re-establishing judicial independence.

Publicly Financed Elections in Practice

North Carolina has Tremendous Success with Publicly Funded Judicial Elections

Judicial public financing has been instituted in North Carolina [NC Voter Owned Elections Act [16] ], which had its first clean judicial elections in 2004.  The success has been astounding:

• In 2008, 92% of eligible judicial candidates are participating in public financing.
• Participating candidates won 4 of 5 races in 2004 and 5 of 6 races in 2006.
• Non-family campaign contributions from PACs, lawyers and other political committees dropped from 73% of the total raised to 14% between 2002 to 2004.

Public financing of judicial elections not only frees candidates to focus on the campaign instead of on fundraising, it also makes North Carolina far less attractive of a target for private interests that would seek to mold the judiciary - without the ability to try and buy the election, business groups appear uninterested in interjecting themselves in the process.  Also, voter support for clean elections and an independent judiciary puts pressure on candidates to accept public funds and the spending limits that go with them.  Simply put, impartial justice and clean elections go hand in hand.

The Basic Structure of Publicly Financed Campaigns

No matter the race at issue, comprehensive public financing models generally conform to the following basic structure:

1.    Require that a candidate collects a certain number of $5 or $10 contributions, termed “qualifying contributions,” which establish the seriousness of her candidacy.  The number of contributions depends on the office sought, but is generally in the hundreds.  Contributions are limited to individuals registered to vote in the district.
2.    Allow candidates to raise a limited amount of “seed money” in small contributions (typically $100 or less) in order to support their qualifying contribution fund raising.
3.    Candidates who have collected the requisite number of qualifying contributions then receive a set amount of public financing in the form of a grant (usually two separate grants for the primary and general elections).
4.    The public funds are disbursed with the condition that the candidate accepts no additional outside campaign contributions and spends no money outside of public funds.
5.    Candidates outspent by privately financed opponents are entitled to additional, “fair fight” funds to maintain their competitiveness in the election.  Fair fight funds are also available when independent third parties spend on an opponent’s behalf.

Lawmakers in states with elected judges have an opportunity to protect the independence of their judiciary by advancing clean elections for judicial candidates.  Doing so will also build a group of important models which will demonstrate the value of public campaign financing and the support it garners from both voters and candidates.

Resources

Justice At Stake Campaign [17]
Brennan Center for Justice - Fair Courts [18]
American Bar Association - Report of the Commission on Public Financing of Judicial Campaigns [1]
American Judicature Society - Judicial Selection in the States [19]
Progressive States Network - Shutting the Courtroom Door: How the Corporate Right Mobilized in the States [3]
North Carolina Voters for Clean Elections - Judicial Elections [20]
Democracy North Carolina — A Profile of the Judicial Public Financing Program, 2004-2006 [21]
North Carolina Judicial Campaign Reform Act Summary [22]
New York Times - Rendering Justice, With One Eye on Re-election [23]