Judicial Elections: You Get The Judges You Pay For
Legal elites must come to terms with a reality driven by the grass-roots electorate: judicial elections are here to stay. Given this reality, we should focus on balancing important First Amendment rights to financially support campaigns with due process concerns about fair trials.
An ugly, expensive campaign for a seat on the Wisconsin Supreme Court is but the latest example of what is now common in judicial elections: millions of dollars in misleading television ads, subsidized by lobbies that have cases before the bench.
In 39 states, at least some judges are elected. Voters rarely know much, if anything, about the candidates, making illusory the democratic benefits of such elections. Ideally, judges should decide cases based on the law, not to please the voters. But, as Justice Otto Kaus of the California Supreme Court once remarked about the effect of politics on judges’ decisions: “You cannot forget the fact that you have a crocodile in your bathtub. You keep wondering whether you’re letting yourself be influenced, and you do not know.”
The need to run multimillion-dollar campaigns to win election to the court in much of the country renders the crocodile ever more menacing.
For more than a quarter of a century, voters have rejected efforts to move from an elective to an appointive bench. Last year, despite a campaign led by Sandra Day O’Connor, Nevada voters became the latest to reject such a change.
Scholars, judges and advocates who find intellectual comfort in seeking to eliminate judicial elections are indulging a luxury that America’s courts can no longer afford. Instead they should focus on incremental changes to what Justice O’Connor bluntly calls the “wrong” of “cash in the courtroom.”
More than 7 in 10 Americans believe campaign cash influences judicial decisions. Nearly half of state court judges agree. Never before has there been so much cash in the courts. Measured only by direct contributions to candidates for state high courts, campaign fund-raising more than doubled in a decade.
But this is only part of the financial story. Nationally, in 2008, for the first time, noncandidate groups outspent the candidates on the ballot.
Perhaps most tellingly, a study of 29 campaigns in the 10 costliest judicial election states over the last decade revealed the extraordinary comparative power of “super spenders” in court races. The top five spenders in each of the elections laid out an average of $473,000.
In 2009, the United States Supreme Court dealt with this issue, holding that due process is violated when a judge participates in a case involving a party that spent a great deal of money on the judge’s election effort. The case before the court involved a West Virginia Supreme Court decision overturning a jury verdict that awarded a $50 million judgment against Massey Coal Company.
One of the justices in the majority of that 3 to 2 decision, Brent D. Benjamin, had been elected after Massey Coal’s chief executive spent $3 million on his campaign. The United States Supreme Court held, 5 to 4, that due process was violated because of the lack of an impartial decision-maker. The court made clear, however, that campaign spending requires the disqualification of a judge only rarely.
A year later, the high court held, in the Citizens United case, that corporations and unions have the First Amendment right to spend unlimited amounts of money in election campaigns. In light of these two decisions, corporate and union officials must engage in a perverse guessing game: they want to spend enough to get their candidate for the bench elected, but not so much as to require the judge’s disqualification if the campaign is successful.
Rigorous recusal rules are an important step, but merely disqualifying a judge on occasion is insufficient. The most obvious solution is to limit spending in judicial races. States with elected judges should restrict how much can be contributed to a candidate for judicial office or even spent to get someone elected.
That solution has long been assumed to be off the table, though, because the Supreme Court ruled in 1976 that while the government can limit the amount that a person gives directly to a candidate, it cannot restrict how much a person spends on his or her own to get the candidate elected. Nevertheless, large expenditures to get a candidate elected to the bench undermine both the appearance and reality of impartial justice.
The Supreme Court’s 2009 decision properly focused on the $3 million in campaign expenditures, not the $1,000 that was directly contributed. In the legislative and executive offices, it is accepted that special-interest lobbying and campaign spending can influence votes; but that is anathema to our most basic notions of fair judging.
Thus, the Supreme Court should hold that the compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending that would be unconstitutional for nonjudicial elections.
States should restrict contributions and expenditures in judicial races to preserve impartiality. Such restrictions are the only way to balance the right to spend to get candidates elected, and the due process right to fair trials.
By: Erwin Chemerinsky and James J. Sample, The New York Times, April 17, 2011
Unfettered Money: The Enabling Of Campaign “Speech”
When the Supreme Court ruled that money equals speech 35 years ago, it was responding to forces of technology and economics reshaping American politics that made it much more expensive to run a campaign. While ruling that public financing and limits on contributions are valid ways to limit donors’ undue influence, it struck down candidate, campaign and independent spending limits.
Now the court’s conservative majority is again reshaping politics, ruling that what matters most for money and speech is their “fair market” impact. The result will be closer scrutiny of public financing, while enabling even more rampant spending by wealthy candidates.
In the landmark 1976 case of Buckley v. Valeo, the court said that “virtually every means of communicating ideas in today’s mass society requires the expenditure of money,” so restricting campaign spending meant restricting political speech. The First Amendment required that political speech be unfettered, so the same was required for political spending.
But when the court ruled that money equals speech, it didn’t mean, literally, that money is speech. It meant that money enabled speech. A political contribution enabled the symbolic, or indirect, speech of the donor and the actual speech of the candidate — and may the best speech win. The focus was on enabling the speech, not the money.
That changed in 2008 when the conservative majority struck down a federal rule that had tripled the limit on campaign contributions for a candidate outspent by a rich, self-financed opponent. Justice Samuel Alito Jr. wrote that the rule diminished “the effectiveness” of the rich candidate’s spending and of his speech.
In oral argument recently, the court’s conservatives appeared ready to take their next step in restricting campaign finance reform and to strike down Arizona’s public financing mechanism called triggered matching funds. This is one of the most compelling innovations in the country. The state will match for a state-financed candidate what an opponent raises in private contributions up to triple the initial amount of state financing.
To William Maurer, the lawyer opposing the Arizona mechanism, whenever “a privately financed candidate speaks above a certain amount, the government creates real penalties for them to have engaged in unfettered political expression.” That “speaks” was not a slip, but a reinforcement of the money-equals-speech notion.
The fundamental problem, he said, is “the government turning my speech into the vehicle by which my entire political message is undercut,” because the public funds triggered are a penalty that reduces the impact of the privately financed candidate’s spending and speech. Chief Justice John Roberts Jr. made clear in the argument that he, too, sees triggered matching public funds as a limit on the privately financed candidate’s speech.
That makes no sense. Arizona’s mechanism means more candidates — not just the wealthy — will be able to run in elections. And that means more political speech, not less. But that view depends on seeing money as enabling speech, not vice versa. Money already has far too much sway everywhere in politics. If the court continues this way, the damage and corruption will be enormous.
By: Editorial, Opinion Pages, The New York Times, April 11, 2011
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