Judicial Election Spending
By Aswan Taylor, Intern for Chicago Appleseed Fund for Justice
A wave of recent U.S. Supreme Court decisions, culminating in last week’s McCutcheon v. Federal Election Commission ruling, have diverged from the formidable pull of public sentiment and mounting research to reassert the role of financial contributions in federal elections. The McCutcheon ruling, which strikes down overall campaign contributions for the biggest individual donors, echoes Citizen United and may signal an end of the road for campaign finance reform in the judicial branch at the federal level. However, anchored by empirical studies and a near public consensus (80-90%), some states and cities have weighed their own options of limiting campaign contributions to elected officials. Five years after the Court acknowledged the clear threat to judicial impartiality posed by campaign contributions in Caperton v. Massey—thereby implying that states adopt stronger standards to address potential conflicts of interest—the stage is set for state-level judicial election contributions to shape the immediate future of campaign finance reform
The American Constitution Society recently compiled one of the first sets of comprehensive data and analysis in 15 years regarding the relationship between campaign contributions and state judicial elections. Their findings, focused mostly on business contributions, illustrate that rising amounts of money being funneled into judicial elections is placing fair and impartial courts at risk. “Fundraising for judicial campaigns has skyrocketed, more than doubling, from $83.3 million in 1990–1999 to $206.9 million in 2000–2009.” Interest groups have dominated the trend as businesses and lawyers and lobbyists contributed roughly equal amounts to judicial campaigns, yet business groups were responsible for over 90 percent of interest group television advertising during the campaigns.
Much of the increase in spending has occurred in state races where the balance of power on the high court is at stake. However, the 2010 election cycle also witnessed a large spike in spending on retention elections, even in merit-selection states. Spending in high court retention elections in 2010 rose up to 12.7% of total judicial election spending, from an average of 1% during 2000-2009, according to Brennan Center. While it’s not yet clear whether 2010 was an anomaly or part of a larger, more troubling trend, it does seem that interest groups are holding judges politically accountable for their decisions by funding campaigns against them or rewarding them for good behavior.
In response to this nepotism infused politics and perhaps wary of recent U.S. Supreme Court decisions that have rejected limits on the amount of money that can be used to influence elections —nine states have taken up new efforts aimed at reducing the risk that increased spending may result in “actual or perceived bias” on the part of judges. As special interest money has expanded its reach beyond traditional channels, reform advocates have turned toward state recusal standards to mitigate the effect on impartiality despite an increasingly narrow legal definition of corruption. Pennsylvania most recently tried to address the threat of conflicts of interest through updates to its Judicial Code of Ethics. New York went even further by taking much of the responsibility out of judges’ hands, requiring that court administrators monitor and publish contribution records and then assign cases accordingly. Still, others have launched initiatives and watched them stall or fade away (Nevada, Texas, Montana); some have relaxed recusal standards (Wisconsin), or made no attempt at changing standards at all. While the policy varies with each state’s individual system, tightening recusal standards is just one way to limit the influence of campaign contributions on court decisions. The unmistakable spread of an upward trend in judicial campaign spending to retention elections poses a challenge that warrants additional vigilance.
In Illinois for example, where standards for recusal are both discretionary and relatively unclear, an ongoing controversy has sparked renewed interest in the implication of contributions to judicial campaigns and their developing role in retention elections. The high stakes of a 2004 election for a seat on the Supreme Court drew an unprecedented $9.3 million in campaign spending, bringing Judge Lloyd Karmeier to the bench with the help of $350,000 in direct contributions and possibly more than $3 million in indirect support from State Farm Insurance Co. Subsequently, Karmeier refused to recuse himself from hearing the appeal of a class-action suit against State Farm, ultimately voting with a majority to overturn a $1 billion award. The infamous case, which has now been reconfigured under RICO and now-captioned Hale v. State Farm, exemplifies the targeted influence now sought by special interests in the justice system. As Justice Karmeier approaches a May 4th deadline to announce his run for retention, both the perception and reality of encroachment on judicial impartiality suggest the need for greater transparency and voter awareness heading into elections.
Sources:
Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions, by Joanna Shepherd at ACS State Courts
Supreme Court Strikes Down Overall Limits, Washington Post
Brennan Center Recusal Reform Recap
Judicial Elections, Brennan Center
NY State Public Financing, Brennan Center
“N.Y. budget dips toe into reform” from The Journal News at NY LEAD
Illinois Needs Tougher Recusal Standards, Illinois Campaign for Political Reform
Revised Pennsylvania Ethics Code Includes Judicial Recusal Rule, Gavel Grab