During a recent campaign for a seat on a local Ohio Domestic Relations Court, a lawyer from a small firm ran up against a political, ethical, and financial dilemma. His predicament began innocently enough when he was solicited for a campaign contribution by supporters of the Democratic incumbent. The lawyer, a longtime Democrat, willingly put his signature on a $250 check to the judge's campaign. Soon, however, he was contacted by the campaign of the Republican opponent. Would the lawyer be willing to contribute to their candidate's campaign as well? The lawyer, who almost never gave to Republican candidates, nonetheless wrote out a matching check. His rationale was simple: His legal practice involved frequent appearances in family court, and he simply could not afford to risk offending whichever judge was eventually elected.
The Ohio lawyer's story highlights an increasingly common and troublesome phenomenon: the dramatic rise in costly, privately financed judicial campaigns wherein the preponderance of money comes from lawyers and others with a direct stake in the judge's decisions. This trend not only poses a danger to the independence of judges across the nation; it also encourages the politicization and potential corruption of the branch of government that should remain most immune from such influences. The real irony, though, is that this problem is going unattended just as our national campaign system, including constitutional limits on political contributions, is receiving increasing scrutiny.
Judicial campaigns date back to the first years of our national history but now involve far greater sums of money than ever before. Consider, for example, last year's campaign for chief justice of the Wisconsin Supreme Court. Spending totaled $1.3 million, nearly double the previous spending record set just two years prior and more than 10 times the spending of a campaign 20 years earlier. Or take the 1996 race for the Alabama Supreme Court, in which the two candidates together spent more than $2 million, about 10 times as much as was spent for a seat 10 years earlier. In Texas the seriousness and duration of the problem--even after the institution of reforms in 1995--have led to the recent filing of a lawsuit by Public Citizen challenging the constitutionality of the system. The lawsuit, which has the potential to affect campaign finance systems in other states, argues that a system that allows and encourages candidates for state court judgeships to solicit campaign funds from individuals and lawyers who appear before them violates the Due Process clause of the U.S. Constitution.
Much of this trend toward increasing expenditures in judicial campaigns dates back to a 1978 California judicial election in which Los Angeles deputy district attorneys recruited candidates to oppose unchallenged incumbent trial judges. The effort resulted in a significant turnover of judicial personnel, but more importantly, it marked the beginning of a movement that eventually led to one of the most prominent, controversial, and expensive judicial races ever: the 1986 recall election in which Californians voted out State Supreme Court Chief Justice Rose Bird and two associate justices. More than $11 million was spent by both sides on a campaign that centered on a single issue--Bird's refusal to enforce the death penalty in California.
By contrast, the federal judiciary is structured to avoid precisely this sort of politicization of the bench. Under the U.S. Constitution, members of the federal bench are appointed by the president and confirmed by the Senate, and they receive lifetime tenure--a prize intended to ensure judicial independence and fealty to the supreme law of the land over any partisan attachment. The federal system is certainly not without its underlying political influences: Presidents appoint judges with a view to their judicial and political philosophy. Judges may sometimes tailor decisions with an eye to advancement to higher courts. But on the whole, federal judges remain quite insulated from extra-judicial and political pressures.
States, on the other hand, have historically been far more reluctant to grant judges so much freedom from public accountability. Judicial elections are intended in part to ensure that judges do not become too independent. Not all states use elections as their primary tool of judicial selection, but most do. According to a recent study conducted by an American Bar Association (ABA) task force, almost 87 percent of the nearly 10,000 state trial and appellate court judges in the country face some kind of election. And even states that have merit selection systems often involve retention elections.
Pleasing the Court
Today, big money is distorting even the sometimes questionable goals judicial elections were initially intended to serve. The issue is not simply whether state and local judges will be elected or whether campaigns for these seats will cost money. The question is whether abuses of the system of elections and campaign finance have upset the critical balance between the competing values of judicial independence and public accountability. Instead of offering an opportunity for the majority to bring judges to account, "justice" is increasingly being slanted toward the wishes of a minority of the wealthiest citizens whose role in funding elections is disproportionately large. A recent study of Wisconsin State Supreme Court elections of the past 10 years found that candidates depend overwhelmingly on large individual contributions from a tiny number of well-off and nonminority contributors, most of whom are lawyers and lobbyists from a small number of large law firms. The study also found that personal wealth is among the most important factors in a candidate's success since the fastest-growing category of contributions is from candidates to their own campaigns.
Equally troubling, the breakdown of contributors is increasingly identifiable in terms of party alignment and single-issue advocacy. Many judicial candidates are identified with and endorsed by political parties. And even in those jurisdictions where judicial races are supposedly nonpartisan, judges are frequently grouped on ballots with candidates who are identified by party affiliation, thus making associations and decisions easy for voters, who are usually uninformed about judicial candidates.
The driving force of single-issue contributions and voting also distorts the functioning of judicial elections. In the 1994 campaign for chief justice of the Alabama Supreme Court, the two candidates received nearly $1 million in campaign contributions. The Republican challenger received the bulk of his funds from business groups seeking caps on punitive damage awards, while the Democratic incumbent, a former trial lawyer who opposed the caps, took most of his funds from fellow trial lawyers.
And this kind of activity seems likely to grow. A recent report in The Wall Street Journal noted that Koch Industries rates judges on their views concerning the business community. These ratings, in turn, have then been used to attract donations to supreme court candidates in a number of states including West Virginia, Kansas, Louisiana, Alabama, Mississippi, and Texas.
Single-issue judicial politics, especially on highly charged public questions, also reduces the public's trust in and respect for the judiciary. Such attacks, which often take an individual judicial decision out of context or without regard for the complex legal issues involved, both distort the public perception of judicial accountability and jeopardize judicial independence. In Pennsylvania last year, for instance, Superior Court Judge Kate Ford Elliott lost a race for the state supreme court after her opponent filled the last four days of the campaign with advertisements accusing her of having "let criminals loose on technicalities." In Georgia, Supreme Court Justice Leah Sears, the state's only African-American woman to serve on the high court, was attacked by Atlanta lawyer George Weaver for her views on the electric chair and other issues. In fliers he stated that "her views are a direct attack on our basic moral standards." Weaver was sanctioned by the state Judicial Qualifications Commission, which criticized his ads as "false, deceptive and misleading." His response was to file a federal lawsuit against the commission. What is especially noteworthy about this case is that the commission's regulations were themselves the result of a nasty campaign for the Georgia Court of Appeals a few years earlier. Such tactics may be par for the course in legislative and executive elections. But their very questionable appropriateness in a judicial context highlights the tensions inherent in electing judges.
Judicial Independence and the First Amendment
A natural response to any excess is to place limits on it. Unfortunately, when this excess involves political contributions, there is a significant obstacle--the First Amendment. In its 1976 decision in Buckley v. Valeo, the U.S. Supreme Court held that limitations on campaign expenditures may violate the Constitution because they "reduce the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached." A number of recent rulings indicate that this holding, which has bedeviled national campaign finance reformers for years, is alive and well as it applies to the judiciary. In Ohio last year, a federal appeals court ruled unconstitutional a 1995 law that attempted to impose spending limits on judicial campaigns. The court rejected the argument, offered by the Ohio attorney general, that judicial campaigns should be exempt from certain First Amendment protections because states have a compelling interest in preserving the impartiality and appearance of impartiality of elected judges. The state's petition to the U.S. Supreme Court to hear its appeal, which might have served as a vehicle to begin whittling down the Buckley standard, was rejected by the Court earlier this year. A challenge to a second Ohio law, passed in 1997, which sets higher campaign spending limits, is pending.
The issue, as noted by the Ohio attorney general, is not just the money--even when it is doled out in record-setting amounts--but the ethical dilemmas these contributions create for judges, the potential taint they may cast over subsequent decisions, and the appearance of impropriety that accrues to lawyers who appear before judges to whose campaigns they have contributed. As U.S. Supreme Court Justice Stephen Breyer said in 1998, "Judicial independence is in part a state of mind, a matter of expectation, habit, and belief among not just judges, lawyers, and legislators, but millions of people." When judges are viewed as little more than politicians who wear robes, that public perception can be dramatically altered. Not surprisingly, a recent Wisconsin poll found that more than three-quarters of those surveyed believe that campaign contributions from lawyers and plaintiffs in high-profile cases influence the decisions of these judges in court. The poll also found that 81 percent of the population believe that because of campaign contributions, special-interest groups get better treatment in our courts than do regular people. A similar study conducted by the Texas State Bar and Texas Supreme Court--which found that 83 percent of the public and 79 percent of lawyers believe that campaign contributions have a significant influence on a judge's decision--was the motivating factor and primary evidence in the filing of the current lawsuit challenging the constitutionality of that system.
So what is to be done? Over the years, there have been a number of suggestions for how to correct the system, both for how to combat the excessive influence of money and for how to limit negative and one-issue campaigning. Merit selection of judges, which is now used in 15 states and the District of Columbia, comes closest to achieving the goals of quality personnel, public accountability, and judicial independence. Candidates for the bench in such a system generally are screened by a nonpartisan committee composed of judges, lawyers, and laypeople. The committee reviews applications and sends a list of qualified individuals to the governor or legislature, who then selects one individual. In this system too, the judge usually must face voters in a retention election, thereby fulfilling the need for public accountability.
But after nearly 100 years of efforts to put merit selection systems in place, even the most committed advocates realize that there may need to be a less sweeping solution, one that focuses not on adopting a new system of selection, but on refining the current rules of campaign finance, disclosure, and disqualification of judges. And as long as the Buckley standard remains in force, public financing of judicial elections seems the obvious answer.
By establishing a floor of financial support that allows candidates to communicate with the voters, a state or locality can increase public debate and reduce both the frequency and the problems of candidates raising additional funds. In this way, the political speech that is at the core of First Amendment protection is maintained but does not fall victim to the skewing of the playing field that comes when unlimited wealth is injected into the equation. In Wisconsin, for example, an anonymous person or group paid $135,000 to send 450,000 postcards to voters just before the Supreme Court election. That kind of activity is one reason a coalition of judges, legislators, and grass-roots organizations is now working to pass an "impartial justice" bill that would expand the partial public funding that already exists in that state (the only state with active public financing of judicial elections) and eliminate special-interest contributions to participating candidates.
But along with elimination of campaign finance inequity that public financing works to stem, there is the related problem (unique to the judiciary) of undue influence that lawyers can have on judges through their contributions and, at least equally significant, that judges can have on lawyers who appear before them, through implicit and explicit pressures to contribute. Unlike lobbyists and others who give campaign contributions to legislators in order to gain access and influence, lawyers should have neither with the judges before whom they appear. At present, however, the restrictions on both lawyers and judges are relatively limited. Judges are bound by the Code of Judicial Conduct, which bars them from making "pledges or promises of conduct in office" or "statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court, or knowingly misrepresent the identity, qualifications, positions or other fact concerning the candidate or opponent."
But this moral bar does not always eliminate the potential for, or appearance of, impropriety by judges who can and frequently do receive contributions from parties or attorneys who appear before them. In Texas, for instance, the law specifically authorizes judicial candidates, including sitting judges, personally to solicit contributions and does not require them to recuse themselves even in cases in which parties, lawyers, or friends of the court have contributed, according to Allison Zieve, lead counsel in Public Citizen's suit against the Texas system. Other states, such as Alabama, have no limits on contributions but require attorneys to identify contributions they made to that judge and then offer the other party an opportunity to ask the judge to step aside.
The ABA recently took a major step forward to enhance regulations relating to judicial campaign contributions. In rules adopted at its annual meeting, the Code of Judicial Conduct was amended to recognize that some jurisdictions may wish to enact strict campaign contribution limits for judicial elections and that a judge should disqualify himself or herself if a campaign contribution is made by a party or its lawyer in excess of local limits. The ABA also approved an amendment that prevents a judge from appointing a lawyer to perform legal services or serve in other official capacities if the lawyer has contributed a certain amount to the judge's campaign. As Georgetown University Law School Professor Roy Schotland, the head of an ABA task force on this issue, explains, it is now up to states to adopt or adapt these new rules and make them applicable to their judiciaries. One further issue that states will need to focus on, because the ABA does not specifically address it, is the aggregation of contributions--the possibility that, for instance, many lawyers from one law firm could contribute to one judge.
Ultimately, the solution must involve a combination of strategies: public financing of elections, modifications in disclosure and recusal rules for judges and lawyers, merit selection, and the final piece in the campaign finance puzzle--the creation of a more educated electorate. As Charles Price, a political science professor at California State University, Chico, notes, "Judicial races are like stealth candidates. They are barely above the radar."
There are a number of promising practices already in place. Missouri has developed an initiative that includes the distribution of brochures about voting for judges, establishment of a judicial speaker's bureau, a statewide survey of lawyers to evaluate the judiciary, and the enlistment of the media to write informative stories about the judiciary. And in recent elections in Washington, voter guides to judicial primary elections were included in the Sunday newspapers. These efforts, which have met with some success, indicate that when linked to other reforms, public education offers the promise of state judicial systems that ensure integrity, independence, and real accountability to all citizens.
Chief Justice John Marshall once wrote that "the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent judiciary." Marshall understood that judicial independence--whether guaranteed through life tenure in the case of qualified federal judges, or through the meritorious and fair selection of judges within the state systems--is the core of an effective judiciary and a foundation of our democracy. Until states begin to address these issues comprehensively, it will likely be politics as usual--a distressing indictment of our state judiciaries, and a continuing dilemma for those lawyers and citizens who want justice but don't want to have to buy it. ¤