Several recent reports have examined the impact that skyrocketing campaign spending has on state court judicial elections, and whether the infusion of cash into such races is compromising judicial impartiality and integrity.
One study, “Bankrolling the Bench: The New Politics of Judicial Elections 2013-2014,” was prepared by three non-partisan organizations: Justice at Stake, the Brennan Center for Justice at NYU School of Law and the National Institute on Money in State Politics.
The study noted that judges in 39 states are elected and the vast majority of legal matters are handled by state-level courts. As such, it sought to address the degree to which election funding has impacted judicial impartiality.
Speaking to the power of money in judicial elections, the report compiled spending data on every state appellate and supreme court electoral race in all 50 states, and came up with a not-so-surprising conclusion: candidates for judicial positions who spend more than their opponents win those elections over 90 percent of the time.
Another non-partisan report, “More Money, More Problems: Fleeting Victory for Diversity on the Bench,” released by the Center for American Progress (CPA) in October 2015, found much the same result, but noted that white judicial candidates had a much higher re-election and retention rate than black or Hispanic justices. It found that the overall re-election rate from 2000 to 2015 was 88 percent, with a retention rate for white candidates of 90 percent, a retention rate of 80 percent for black judges and a rate of only 66.7 percent for Hispanic justices. The CPA report also found that white judicial candidates had significantly more financial resources to spend on their election races.
According to Facing South, a publication of the Institute of Southern Studies, these disparities pose a significant threat to diversity on state supreme court benches. Billy Corriher, a co-author of the CPA report, said “[t]he lack of diversity on elected state supreme courts is alarming. These courts determine the scope of important rights related to voting, education, and health care. And state courts hear the vast majority of criminal cases in America.”
Most of the attention on judicial fundraising has focused on state supreme court elections, where spending has increased exponentially from 2000 to 2014. During that time period, direct spending on supreme court races in Alabama totaled over $48 million; in Texas, $45 million; in Illinois, around $35 million; in Ohio, nearly $30 million; in Pennsylvania and Michigan, $25 million; and in Mississippi, Louisiana, West Virginia and North Carolina, more than $10 million.
Special interest groups have not been shy about throwing their financial weight around, with special interest spending on judicial elections during the 2011-12 election cycle alone reaching $24.9 million. That figure was nearly seven times the amount of judicial spending in 2000.
Such funds have not only been used to support individual candidates but also to run negative attack ads and ads that focus on “wedge” issues. Those issues include accusing judicial candidates of being soft on crime, lenient on sex-offenders and indifferent to crime victims.
Even more worrisome is the largely obscure role that money plays in lower court elections, with increasing sums of money being raised and spent, forcing judicial candidates to devote increasing time to fundraising. This raises questions of impartiality, since candidates receive campaign contributions from attorneys, businesses and other parties that may have cases in their courts.
Essentially, judges “have had to become professional fundraisers,” observed Bert Brandenberg, executive director of Justice at Stake, a judicial-reform organization.
Unfortunately this problem shows no sign of abating, with more and more individuals and corporations realizing there is a high potential for return on investment by contributing to members of the judiciary who are in a position to rule in their favor in high-stakes cases.
As reported by Streetroots.org in November 2016, efforts to influence state-level judges have intensified – for example, a political action committee (PAC) headed by Microsoft founder Bill Gates and other billionaires was created for the purpose of replacing a Washington state judge who issued a ruling adverse to public funding of charter schools.
Streetroots reported that similar actions have taken place in Texas and West Virginia. In Texas, doctors and insurance companies have made significant campaign-related expenditures to influence the composition of that state’s supreme court, with the goal of limiting healthcare-related torts. In West Virginia, the coal industry reportedly injected $2.5 million into a state supreme court race for the purpose of electing an industry-friendly judge.
Further, as reported by the Brennan Center for Justice in October 2016, special interest funding of advertisements aimed at judicial candidates has reached a new high – with $14 million spent on television ads targeting state supreme court elections during the 2016 election cycle.
There have, however, been some attempts at reform – albeit limited reform. In May 2015, the U.S. Supreme Court issued a decision in which the high court held judicial candidates may not directly solicit campaign contributions. See: Williams-Yulee v. State Bar of Florida, 135 S.Ct. 1656 (2015).
But as noted by the Washington Post, critics argue that the ruling falls short of substantive reform because it does not prevent proxies (such as campaign workers) from soliciting contributions on behalf of judicial candidates, nor does it bar disclosure of the sources of campaign contributions in judicial elections.
In addition, the Supreme Court’s ruling has no bearing on corporate and special interest expenditures – such as those for partisan television ads – intended to influence judicial races. This essentially means that judicial elections (like most other elections) are for sale to the highest spender, and we end up with the best judges that money can buy.
As stated by former U.S. Supreme Court Justice Sandra Day O’Connor, “Judicial elections pose a serious threat to judicial independence. If judicial decisions are in fact not fair and impartial – or even if they are perceived as being biased – the basis of support for our courts crumbles.”
Sources: www.newpoliticsreport.org, www.theatlantic.com, www.motherjones.com, www.southernstudies.org, www.news.streetroots.org, www.washingtonpost.com
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Related legal case
Williams-Yulee v. State Bar of Florida
|Cite||135 S.Ct. 1656 (2015)|