This report is the second in a series on different policies that could help mitigate the influence of corporate campaign cash in judicial elections. The reports are intended for advocates or legislators who want to ensure our justice system works for everyone, not just those with enough money to donate.
The steep rise in campaign contributions for judicial elections has been well documented. Candidates in state supreme court races raised around $211 million from 2000 to 2009—two and a half times more than in the previous decade. The states that have seen the most campaign cash are those that hold partisan judicial elections. This year, political parties are intervening at an unprecedented level in judicial races in two states – Montana and Florida – that have nonpartisan elections.
This report argues that partisan elections lead to more campaign contributions and increased partisanship among judges. These problems may be the reason why several states have abandoned the idea of partisan judicial elections in recent decades.
While 38 states elect their state supreme courts, only six elect justices in partisan races—Alabama, Illinois, Louisiana, Pennsylvania, Texas, and West Virginia. All of these states are among the top ten in total judicial campaign contributions from 2000 to 2010. In fact, four of the top six states include those with partisan elections. The other states in the top six, Ohio and Michigan, have ostensibly nonpartisan elections but use partisan processes to nominate their judicial candidates.
Inundated with campaign cash, courts with partisan elections have seen their share of scandals in recent years. West Virginia saw the integrity of its high court questioned when it came to light that a coal company executive spent millions in 2004 to elect a justice who subsequently voted to overturn a $50 million verdict against his company. A similar scandal erupted that same year in Illinois, when it was revealed that the insurance and financial services giant State Farm spent millions (the actual amount of the firm’s campaign spending is in dispute) to elect a justice who voted to overturn a $1 billion class-action verdict against the insurer. The Louisiana Supreme Court was accused of bowing to pressure from varied corporate interests after it took action against law school legal clinics that were investigating environmental hazards in New Orleans. The Texas Supreme Court has been the subject of multiple media reports looking into the influence of judicial campaign donors, including the poster child for corporate malfeasance, the Enron Corporation.
Many of these state supreme courts—Alabama, Texas, Ohio, and Michigan—are now dominated by conservative judges that favor corporate defendants over individual plaintiffs. Republican justices outnumber Democratic justices nearly two-to-one in the six states with partisan elections.
Some state high court justices have publicly called for nonpartisan races. Chief Justice Wallace Jefferson of the Texas Supreme Court argues his state’s partisan system “permits politics to take precedence over merit.” Justice Maureen O’Connor of the Ohio Supreme Court says a nonpartisan primary would “keep moneyed special interests, ideologues and partisan politicians out of the courthouse.”
Political parties funnel special interest money to judicial candidates
Why are partisan judicial races so much more expensive than nonpartisan contests? One answer could be that potential campaign donors find it easier to donate money in these races. In states with partisan judicial elections, there is a ready-built infrastructure for “bundling” donations in place, with state parties acting as conduits for special interests. In judicial elections, these interest groups usually include trial lawyers (for Democratic candidates) and big business groups (for Republican candidates).
Moreover, in partisan elections, campaign donors can be much more certain of a candidate’s views prior to donating money. Partisan primaries tend to force candidates to appeal to the base constituencies of their respective parties, pushing Democrats to the left and Republicans to the right. By the time a candidate is chosen in a partisan primary, special interests can be sure the party’s candidate is a “team player.”
Not mincing words, Justice James Nelson of the Montana Supreme Court said political parties and special interests want “their judge” on the bench. “In partisan elections they have a leg up, as they already know the judge’s likely political philosophy.” Nelson also said Republican judges tend to be “pro-business, anti-government, pro-life, etc.,” while Democrats are pro-choice and less skeptical of government regulation of markets. “Each party wraps within its brand a number of different issues and ideologies,” he said.
Removing restrictions on judicial campaigning
Justice Nelson also noted that federal courts have recently struck down statutory and ethical rules that limited the ability of judicial candidates to expound their views while campaigning. In Republican Party of Minnesota v. White, the U.S. Supreme Court struck down a Minnesota judicial ethics standard which forbade candidates from commenting on issues that might come before them as judges. The Court said the rule “burdene[ed] a category of speech that is at the core of First Amendment freedoms—speech about the qualifications of candidates for public office.” The Court decreed that Minnesota cannot hold judicial elections while “preventing candidates from discussing what the elections are about.”
Federal appeals courts have expanded this holding to strike down a variety of restrictions on judicial politicking. The U.S. Ninth Circuit Court of Appeals recently struck down a Montana law that prohibited political parties from endorsing judicial candidates and spending money to support or oppose them. The court said the Montana law was not justified by the state’s interest in a “fair and independent judiciary.”
The dissenting judge in the case argued that the majority’s decision “threatens to further erode state judges’ ability to act independently and impartially.” She called the court’s ruling “another step in the unfortunate slide toward erasing the fundamental distinctions” between elections for the judiciary and the political branches of government. One pundit commenting on the decision predicted that “America is going to get more of what it seems to want—state judiciaries that are as beholden to special interests, and as corrupted by money and lobbying, as the other two branches of government.”
Increased partisanship on the bench
In addition to increasing campaign donations, partisan elections also create a different dynamic on the bench. When justices owe their offices to political parties and their fundraising machines, they must invariably feel a certain pressure to “toe the party line.” As a consequence, the judges form liberal and conservative factions, which often lead to very clear ideological divides on these courts.
Admittedly, this phenomenon is also evident to some degree in states with nonpartisan elections. Wisconsin’s judicial races are nonpartisan, but as special interest money has flooded these elections, the Wisconsin Supreme Court has been beset by what Justice Ann Walsh Bradley termed “hyperpartisanship.” When campaign costs rise, all judges feel the pressure to please interest groups that spend big on judicial races.
Because states with partisan elections see more campaign cash than other states, this “hyperpartisanship” is even more evident. Further, the experience of the Supreme Court of Michigan suggests that a partisan nominating process, more so than partisan general elections, may bear the bulk of the blame for divisiveness on the bench. Although its judicial elections are ostensibly nonpartisan, Michigan’s nominating process is in fact even more partisan than partisan primaries. Michigan’s Republican and Democratic parties choose their judicial candidates at state party conventions where the political elites of each party select candidates in accord with the party’s views. A recent University of Chicago study examined “whether judges are influenced by partisan considerations” and ranked the Michigan Supreme Court as the most influenced. Justice Marilyn Kelly said the partisan nominating process “infects the process with a partisan component that is hard to deny.”
Michigan’s absurdly partisan nominating process, along with a surge in campaign spending, has resulted in a court with a very clear ideological divide. Campaign contributions in Michigan Supreme Court elections peaked in 2000, around the same time that conservative judges obtained a clear majority on the court. The 2000 election saw candidates and independent entities spend a total of $16 million. The Michigan Campaign Finance Network estimates that the state political parties and other organizations spent nearly $27 million on independent political ads from 2000 to 2010, but only 22 percent of this spending was reported under state law.
An August 2012 report from the Center for American Progress included a compilation of rulings from the state supreme courts with the most campaign cash. The compilation consists of all cases from 1992 to 2010 in which an individual plaintiff sued a corporation. The appendix to this report is comprised of the compilation’s data for the Michigan Supreme Court. The appendix includes 50 cases from 1998 to 2004, the era after Republicans and pro-corporate justices gained a majority on the Michigan High Court. In 64 percent of those cases, the court was divided 5-2, with five justices voting in favor of the corporate defendant and two justices dissenting.
The chart below illustrates the court’s divide in each of the 135 Michigan Supreme Court cases in the appendix. Before 1999 the court’s decisions were less predictable, with a mix of results that favor individual plaintiffs and those that favor corporations. After the big money elections of 1998 and 2000, however, the 5-2 split is clear.
Party identification as relevant voter information
Conservative scholars point out that identifying judges by party gives voters at least some basis on which to make an informed decision. Some might argue that partisan elections leave less room for ads funded by “independent” interest groups to define the candidates.
This argument might bear more weight if citizens had a clearer idea of what judges do on a daily basis. If voters understood how a Republican judge differs from a Democratic one in the run-of-the-mill cases that occupy most of the courts’ time, then partisan identification might prove more useful. Simply labeling a judge as a Republican or Democrat probably tells most voters little about how the judges will decide cases.
When voters think of judges’ political affiliation, they often think of cases involving controversial social issues, such as abortion or gay marriage, that garner a lot of media attention but constitute merely a fraction of a court’s rulings. But in the states that have seen the most judicial campaign cash, the campaign donors are not concerned with social issues. Instead, liberal judges are supported by trial lawyers who want to see judges protecting individuals’ right to sue wrongdoers; conservative judges are strongly backed by corporate interest groups that want judges who will uphold “tort reform” laws that limit lawsuits. These interest groups often fail to mention these goals in the “independent” political ads they air, instead focusing on criminal justices issues that frighten viewers. This further muddies the water for voters seeking information to help them make their decisions in judicial races.
There are ways that states can provide voters with relevant information without relying on political parties. Ten years ago, as the surging tide of judicial campaign cash was swelling, North Carolina decided to end partisan judicial elections.At the same time, the state implemented a public financing program, and it began distributing voter guides on judicial candidates. Although its public financing program will face a test this year from a super PAC, North Carolina has shown that judicial elections can be held in a manner that minimizes the influence of partisan special interests.
Reasonable minds can differ over whether to elect judges, but it is clear that electing judges in partisan elections leads to a myriad of problems. The U.S. Supreme Court has loosened restrictions on judicial campaigning and struck down campaign finance rules, all in the name of the First Amendment. These developments have amplified the problems presented by partisan judicial races. In these elections, it is easier for special interests to spend money influencing the courts. Political parties serve as “bundling” agents, and they have contacts with donors that judicial candidates can exploit.
Special interests in states with nonpartisan elections may face greater difficulty in swaying voters with independent political ads. Two states—Georgia and Washington—that had never experienced high-profile judicial races saw their 2006 elections overwhelmed with money from corporate special interests. In the 2006 election for the Georgia Supreme Court, corporate-funded groups and the state Republican Party spent more than $2 million attacking incumbent Justice Carol Hunstein, who was appointed by a Democratic governor. Although she was attacked as a “liberal incumbent activist judge,” she held onto her seat in a state that strongly leans conservative. In Washington an incumbent judge was attacked with more than $1 million worth of ads from corporate special interests and the real estate industry. But again the incumbent judge won, despite being outspent. Though special interests have had more success in other states, these two examples suggest that special interests might find it harder to influence nonpartisan judicial elections, at least in states where voters are accustomed to low-key, inexpensive judicial races.
Partisan primaries lead to judicial candidates who are clearly on the side of one interest group or another, and once on the bench, judges in states with expensive judicial races are dependent on special interests for their reelection. This leads to more partisanship on the bench—a court with clear conservative and liberal factions. If judges were deciding cases based on the law, one would expect that some cases would favor the plaintiff and some the defendant. That is not the case, however, in states with partisan nominating processes. The data from the Michigan Supreme Court clearly suggests that a partisan nominating process results in more campaign cash and a court where the justices’ votes break along party lines.
Additionally, partisan elections may affect the quality of jurists. A recent study examined the success rates of judicial candidates rated highly by state bar associations and found that in a partisan election, a high rating by a bar association had no impact on a candidate’s chances of winning. Instead, voters tend to vote for the judicial candidates from the party with which they are affiliated. “By contrast, the quality of judicial candidates has a substantial effect on their vote share and probability of winning in nonpartisan elections.” Another study from two conservative scholars looked at the relationship between campaign contributions and rulings in three state supreme courts. It concluded, “Campaign contributions appear to affect the outcome of cases in states where judges are elected in a partisan contest (Michigan and Texas) but not where they are elected on a nonpartisan ballot (Nevada).”
The New York Times editorial board agrees that partisan nominating processes can lead to lower-quality judges:
Requiring would-be judges to cozy up to party leaders and raise large sums from special interests eager to influence their decisions seriously damages the efficacy and credibility of the judiciary. It discourages many highly qualified lawyers from aspiring to the bench. Bitter campaigns — replete with nasty attack ads — make it much harder for judges to work together on the bench and much harder for citizens to trust the impartiality of the system.
Partisan politics have no place in judicial races. More than other politicians, judges are expected to be true to the law, not to political parties or campaign contributors.
Billy Corriher is the Associate Director of Research for Legal Progress at the Center for American Progress.
The appendix is included in the PDF version of this issue brief.