As dangerous an influence as money may be in politics, it is an even more malevolent force in judicial elections. (Second in a three-part series)
If you live in the battleground state of Florida, and you've watched television in the past few weeks, you may have seen a campaign advertisement designed to convince you that there is something terribly wrong with the Florida Supreme Court. "Our own supreme court denied our right to choose for ourselves," the off-screen narrator laments. The ads began airing statewide just four days after the Florida Republican Party decided that it would oppose three of the state justices in their retention bids. That move came as a surprise to many in the Sunshine State. The Miami Herald headline (and subhead) on September 21 pretty much say it all:
In Surprise Move, Florida GOP opposes Supreme Court justices' retention in November
In a unanimous vote of its board, the Florida Republican Party took the unprecedented move Friday of opposing three Supreme Court justices because of a nine-year-old ruling in a murder case.
No sitting justice has ever lost a retention vote, the Herald reported. But then no sitting justice has ever had to take on Americans for Prosperity, the conservative group funded by Charles and David Koch. The billionaire political activists aren't riled up over an old murder case. That's penny-ante stuff to them. They are still angry about the passage and ratification of the 2010 Patient Protection and Affordable Care Act, the federal health care law. And they have a first amendment right to express that anger by pouring as much money as they want to pour into a state judicial retention race. America, what a country. Here's the ad:
As the good folks at Justice At Stake point out, the fight started two years ago when Republican lawmakers, dominating the state legislature in Tallahassee, proposed a "joint resolution" to place before voters a proposed constitutional amendment that would have exempted Florida from its obligations under the Care Act. The text began like this:
(a) to preserve the freedom of all residents of the state to provide for their own health care: 1) a law or rule may not compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system.
But it wasn't the substance of this language that came eventually before the Florida Supreme Court. It was the way in which the same lawmakers who had proposed the amendment had suggested it be summarized on the ballot. First, a state trial judge determined that the summary was misleading-- indeed, it read more like a Tea Party commercial than anything else-- and that it was not within the power of the judiciary to permit the legislature to substitute the text of the amendment itself in place of the misleading summary. On appeal, the Florida Supreme Court affirmed. No summary. And therefore no amendment on the ballot.
MORE ON OUR BROKEN STATE COURT SYSTEM
Here's the link to the Florida Supreme Court ruling in Florida Department of State v. Mangat. You don't need to be a lawyer to see it contains a perfectly reasonable interpretation both of the extent of the deceit contained in the proposed summary and the remedy that should have applied in the case. Instead of coming up with an accurate, neutral ballot summary, the measure's supporters cheated. And when they were caught cheating by the judges they tried to get around them. And when they failed they didn't blame themselves, they blamed instead the branch of government which, in serving its constitutional purpose, had caught them.
Part I of this series surveyed briefly how lawmakers are seeking to diminish the power and authority of state court judges by limiting the scope of their jurisdiction, by threatening them with impeachment and legislative "oversight" of constitutional rulings, and by manipulating from very early on judicial selection processes. Here in Part II we see another front in the political war against impartial justice; money from special interest groups, coordinated by lawmakers and other political activists, pouring into specific judicial races to punish judges who have found a way, as all good jurists eventually do, to tick off the litigants before them.
As James Bennet notes in the current issue of The Atlantic, there is a vital debate underway today in America about the value and the virtue of near-limitless money pouring into political campaigns. Some see the post-Citizens United world, the world of Foster Friess and Sheldon Adelson, as the fullest expression of free speech rights under the First Amendment-- and perhaps the purest form ever of "venture" capitalism. Others see in the rise of PACS and SuperPACS and dark money ventures a corrupting and corrosive force in politics, destined to ensure that politicians are beholden to moneyed interests for generations to come.
The long-lost, newly-found freedom to spend oodles of money to influence the outcome of an election extends, of course, to judicial elections, odd contests in 39 states where men and woman of some repute in the legal community routinely prostrate themselves to past, current and future litigants for the right to claim to be unbiased judges. As Bennet suggests, the general argument about whether "big money" in politics is a good or bad thing may still be up in the air. But the argument as it relates to judicial elections already has been answered; money creates the appearance of impropriety and almost certainly impropriety itself.
The reason is not difficult to discern. The jobs of judges and politicians may both relate fundamentally to the development of law and legal principles. But the role each plays in that development, and in our system of government, is completely different. No one votes for a political candidate hoping he or she will enter office with an oath swearing to be impartial. There are no ethics rules for politicians requiring them to avoid even the appearance of partisanship or prejudgment. Indeed, it's the opposite. People vote for political candidates-- and people pay millions to support political candidates-- because they want partisanship.
As dangerous an influence as money may be in politics it is even more malevolent a force in judicial elections because the successful object of the judicial campaign advertisement or contribution then assumes a position of power and authority where such financial help is supposed to count for nothing. In politics, we assume (but, as Bennet writes, can rarely prove) that a politician is voting for a measure because it was endorsed by his or her most influential donors. In law, we are asked to presume precisely the opposite; that the judicial candidate takes the money from a donor and then may rule without favor to that donor.
Don't blame Citizens United for all this. The problem started long before that case. In 2002, for example, the Supreme Court struck down a Minnesota rule that prohibited judicial candidates from "announcing" their views on certain contested legal issues. It is the Court's ruling in Republican Party v. White, combined with its ruling in Citizens United, which has made judicial elections seem as sleazy as political campaigns. For if Citizens United allowed the money to pour in, White has allowed judicial candidates, or sitting judges, or their opponents, to use that campaign money to great effect (I'll have more on this in Part III of this series).