Campaign Funding in Judicial Elections
First, let’s consider the amount of money itself. The report’s headline number–$206.9 million—sounds impressive. But it is relatively easy to create impressive numbers when you aggregate enough data. Here the study is presenting us with national numbers (adding up the spending for all thirty-nine states that elect their judges) over a ten year period. In the last election cycle (2007-2008), all state Supreme Court elections in the country generated $45 million in campaign spending—expended on over forty different elections in twenty-one different states.1 This averages out to about one million dollars per Supreme Court election. The amounts spent ranged from a high of $4.4 million for a seat on the Alabama Supreme Court to a low of $7,525 for a seat on the Oregon Supreme Court.
Is this in fact “too much” money to spend on judicial elections? These are very important positions in state government—arguably comparable to a Congressional seat or a Senate seat. Spending one million dollars over a two-year cycle to tell the electorate about who you are, what kind of judge you will be, and how you differ from your opponent might not seem like an extraordinary amount of money for such an important position. McDonald’s spends $1.7 billion over a two-year period to advertise its hamburgers—that works out to an average of $34 million for each state in the country. Candidates and special interest groups involved in judicial elections spend a small fraction of that amount to persuade voters about who should sit on the most powerful court in the state.
Spending on state Supreme Court elections is also low when compared to campaign spending in comparable races. Public records show that in the most recent election cycle (2007-2008), spending for the top Senate race was $15.5 million (New York). The lowest amount of money spent on a Senate race that year was $1.3 million, in Wyoming—more than the average spent on state Supreme Court elections. The average amount spent on a Senate campaign was $12.6 million—twelve times the average spent on a state Supreme Court election during the same cycle.
Spending for the top House race in the country was $12.1 million (NY-20). In fact, the top ten House races in the country in 2008 each topped $7 million in total campaign expenditures—over twice the amount of the most expensive state Supreme Court race. The average amount spent in a House race was $1.8 million, more than the average amount spent in a state Supreme Court election. In other words, the amount spent competing for a seat on a state Supreme Court is far below what is spent on other comparable elections.
But this just means that the proper balance between free speech rights and runaway campaign spending is a problem for all elections, not just judicial elections. Nobody looks at the high amounts of campaign spending in Congressional elections and concludes that members of Congress should be appointed instead of elected. In other words, the fact that judicial candidates and their supporters are spending significant amounts of money is not a problem unique to judicial elections—it is a problem that is common to many different types of elections. It may require reforms to the system, but it is not a legitimate argument that elections should be abolished altogether.
Opponents of judicial election use the study to support another argument as well: that allowing lawyers, unions, and corporations to bankroll judicial elections creates the appearance of impropriety—and perhaps leads to actual corruption. On the one hand, these concerns—like those regarding campaign finance generally—are not unique to the judiciary. Legislators regularly take money from special interest groups and private businesses, but they are still expected to introduce bills and cast votes based on what is good for the state or country as a whole. And political donors—whether they contribute to legislators, executives, or judges—are not necessarily looking for preferential treatment in the future; many times they are merely giving money to candidates who have already shown themselves to share the donors’ political predispositions. In fact, some could argue that a judge seems less likely than any other elected official to respond to political donations inappropriately, since a judge’s discretion is somewhat limited: unlike a legislator, he or she must issue a decision which conforms to the law of each case, and he or she must make an official record that justifies the opinion based on neutral legal principles.
Even so, these concerns cannot be easily dismissed. Judges are fundamentally different from legislators or executives; they must be neutral and unbiased in their decisions, and they must give equal treatment to every party who appears in front of them. Also, judges frequently have the last word in any conflict—once they interpret a statute in a certain way, the legislature rarely returns to the law to change what they have done; and of course an interpretation of the constitution cannot be changed by anything short of a constitutional amendment.
Equally importantly, judges must appear to be impartial. The Justice at Stake study reports that 70% of Americans believe that judges’ decisions are affected by the campaign money they are receiving. It is one thing to believe that your Congresswoman or Senator is casting a vote for a bill because the backers of the bill donated to her campaign, but it is something very different to believe that when you seek justice in a courtroom, the judge will not treat you fairly because your opponent has bought her loyalty in the last campaign.
As the Justice for Stake study mentions,2 there are a number of possible reforms to address this issue. One would be to move towards public financing of judicial elections. Four states have adopted some version of public financing—as the study notes, this reform not only diminishes the perception that judges are “selling” their votes on the campaign trail, but also “reduces the burden on judicial candidates to raise money.”3 Greater disclosure laws would also help—and in the wake of Citizen’s United, they are likely to become even more common for every type of election.4 But perhaps the most important—and the most obvious—reform would be to require judges to recuse themselves from cases involving major campaign donors.5
Mandatory recusal is a more difficult reform to enact than it first seems. First of all, effective disclosure laws are a necessary precondition to such a rule. And once those are in place, other details must be worked out: for example, how much money must be donated before a party is considered a “major” donor, thus triggering the recusal rule? And most significantly, how is such a rule enforced? Some judges may refuse to recuse themselves—as happened in the infamous Caperton decision in West Virginia, in which the Chief Justice refused to recuse himself even though one of the parties before him had contributed $3 million to his election campaign. (Eventually the case was appealed to the United States Supreme Court, which ruled that the Justice in question should have recused himself, but that is hardly a realistic solution in most cases). Recently, enforcement issue has been addressed by the Michigan Supreme Court, which adopted a policy in 2009 that allows a majority vote of a justices’ colleagues on a court to force an individual justices to recuse him or herself.6 But in reality, almost every judge would willingly follow a clear, bright-line recusal rule in order to avoid the appearance of impropriety.
In short, the amount of money flowing into judicial elections is impressive, but when looked at in perspective it does not seem extraordinary. But any amount of money being paid to judges by attorneys or parties who may appear in front of him or her creates very real problems, and states need to do a better job addressing those problems.