Stanching the Cash Flow

The influence of special-interest money in the corruption of state courts has been well documented. In 39 states, at least some judges are elected, and the costs of these elections are escalating dramatically. The money for such campaigns comes primarily from lawyers and litigants with matters before the courts. At the very least, this system undermines the public's perception of the integrity of courts and their rulings. More than seven in ten Americans surveyed said they believe campaign cash influences judicial decisions. Nearly half of state-court judges agreed. The pervasive perception and increasing reality of monetary influence in judicial decision-making weakens a cornerstone of American democracy.

What can we imagine by way of remedy? There are two distinct paths. In the first approach, states would accept judicial elections but mitigate monetary influence by combining rigorous recusal rules with limits on campaign expenditures. In the second scenario, states would shift from election of judges to executive appointment and merit selection. Each approach has advantages and disadvantages, both in terms of the substance and the political reality of reform. But whichever path is chosen, reform in judicial elections is imperative.

Though the Supreme Court has lately taken an expansive view of money as speech, there is reason to believe that even the Roberts Court might recognize that judicial elections are different from others and accept limits that would not be allowed in elections for the legislative and executive branches.

In the last few years, in a series of 5-4 decisions, the conservatives on the Court have declared unconstitutional several campaign-finance laws designed to prevent corruption and to ensure greater equality in the electoral process. However, none of these recent cases involved laws regulating campaign spending in judicial elections. The Court might be more accepting of the need to limit the role of money in the selection of judges. Two years ago, in Caperton v. A.T. Massey Coal Company, the Court ruled that due process was violated in a high-profile West Virginia case. A state supreme court justice participated in the case after the CEO of a company in the litigation had spent $3 million to get the justice elected. In Caperton, the Court emphasized the "extreme facts," including the timing of the expenditures and the amount of the CEO's support, which totaled more than all other expenditures supporting the judicial candidate combined. In such circumstances, the Court declared, "the probability of actual bias rises to an unconstitutional level." Significantly, this was also a 5-4 decision--but with Justice Anthony Kennedy siding with the Court's moderates and liberals as the swing vote and writing the opinion for the majority. In other recent cases, Kennedy joined the Court's conservatives in striking down campaign-finance reforms directed at other branches of government.

A legislator is not disqualified from voting on a bill that benefits those who spent a great deal of money for his or her election; the legislator gets in trouble for bribery only when there is an explicit quid pro quo. But judges are different. Due process requires an impartial decision-maker, and judges are expected to decide the cases before them on the merits, rather than to please constituents or donors. Therefore, campaign-finance laws that would not be allowed for elections of legislators or executive officials might be permitted in judicial elections, even by the Roberts Court, given Justice Kennedy's views.

Three key approaches to campaign-spending reforms in judicial elections are recusal rules, spending limits, and public funding. A minimal first step is for states to adopt rules, as recommended by the American Bar Association, requiring recusal of judges from cases where a party has spent more than a designated sum to elect the person to the bench.

More dramatically, the Supreme Court should uphold limits on campaign expenditures in judicial races that otherwise would not be allowed. Since 1976, in Buckley v. Valeo, the Supreme Court has held that the government may restrict the amount directly contributed to a candidate but not the amount that a person spends in campaign expenditures. However, as the Court recognized in Caperton, large expenditures--not just contributions--in judicial races are inconsistent with the Constitution's requirement of due process of law. So states with elected judges should enact strict limits on spending, regulating both contributions and expenditures, in judicial races. The courts should uphold these restrictions as essential to ensure fairness and due process of law.

Indeed, Kennedy's opinion for the Court in Caperton treats independent expenditures and contributions interchangeably for purposes of due--process analysis and thus provides a model for prospective judicial campaign reform. Implicitly, the majority recognizes that in judicial elections, large expenditures have the same undesirable effects as large contributions.

Similarly, the Court might allow public funding of judicial elections, even though in a ruling this past June in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, the Court, again in a 5-4 decision, declared unconstitutional an Arizona law providing public funding for elections to state offices. The Court held that it violated the First Amendment to increase the amount of public funding for a candidate based on the amount of spending by candidates not receiving such funds. The Court rejected Arizona's argument that preventing corruption and the appearance of corruption justified such a law.

However, the special nature of judicial elections is a compelling reason why such systems should be allowed for judicial races. Some states, such as North Carolina, have enacted public-funding systems for judicial races, and these should be upheld. Prior to the Supreme Court's decision striking down Arizona's public-financing system for non-judicial offices, the Fourth Circuit, one of the more conservative federal appellate courts in the country, unanimously upheld North Carolina's system, which was enacted in response to the financial arms race in judicial elections that was then taking hold across the country. In North Carolina Right to Life v. Leake (2008), the Fourth Circuit wrote powerfully that "the concern for promoting and protecting the impartiality and independence of the judiciary is not a new one; it dates back at least to our nation's founding." The challenged provisions of North Carolina's system, the Fourth Circuit wrote, "embody North Carolina's effort to protect this vital interest in an independent judiciary [and] are within the limits placed on the state by the First Amendment." Judges, again, are different.

The alternative path to reform, which in many ways is preferable, would be to eliminate the election of judges and have each state create a system of merit selection. States that already use such systems generally establish citizen nominating commissions to evaluate and recommend qualified candidates to an appointing authority--usually the governor--who then nominates one of the recommended candidates. Once on the bench for a period of time, the judges in some states then go before the voters in an up-or-down retention election. Eight states and the District of Columbia use merit selection without an elective retention mechanism.

Commission-based appointment systems are designed to avoid one of the problems that led many states to adopt judicial elections in the first instance--namely, the desire to reduce patronage and political clubhouse dynamics in direct-appointment systems. Eliminating contested elections also reduces the role of money in judicial selection. But their Achilles' heel is retention elections, as the massive influence of special-interest money in Iowa's November 2010 retention elections demonstrated.

Politicians are expected to campaign based on what they will do if elected and are supposed to work to please their constituents once in office. But this is antithetical to the role of the judge. Citizens, including those unable or unwilling to spend on judicial campaigns, look to the judiciary to safeguard the highest ideals of equality under law.

Unfortunately, merit selection seems even less politically realistic than the hope that the Supreme Court will allow some limits on campaign expenditures in judicial elections. For more than a quarter of a century, every state effort to replace judicial elections with merit-selection systems has been defeated--often by huge margins. Last year, Nevada voters rejected such a proposal despite the tireless efforts by retired Supreme Court Justice Sandra Day O'Connor to have the state move from an elected to an appointed bench.

Changing from judicial elections to an appointive or merit selection requires a state constitutional amendment, which, in turn, generally requires voter approval (often in addition to legislative passage). Despite highly organized, well-funded campaigns led by established bar and good--government organizations, rank-and-file voters overwhelmingly resist giving up their right to vote in judicial races--even if they often choose not to vote in those races.

The most promising approach to reform, therefore, is to reduce the corrosive effects of money in judicial elections and drastically limit it. The starting point is to recognize that judges are different from other politicians and then to enact legislative reforms that the Supreme Court can accept.

From a practical perspective, there are two challenges: persuading states to legislate campaign--finance reforms for judicial races and then convincing the Supreme Court to uphold them. Both may seem like long shots. However, in the last two years, several state-court systems have begun examining their recusal rules and procedures to limit the influence of money. The increased attention to the escalating problem of spending in judicial elections could well provide the impetus for legislative action. Even though the Supreme Court generally views money as a form of speech, the Court majority evidently sees judicial elections somewhat differently. The justices--who are themselves appointed, not elected--must appreciate from their own experience that this country deserves better than the best judges that money can buy.

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