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).
In spite of Citizens United, I believe that there is still an argument to be made that a state's interest in protecting its judicial elections from descending into partisan political madness is stronger than such an interest is in protecting political campaigns from unlimited money-- and perhaps even strong enough to withstand the current Court's broad first amendment jurisprudence. But that argument is not pending, as far as I can tell, in any case likely to make its way to the justices. That's truly a shame, because as you'll see below money's influence on the rule of law and the independence of the judiciary is blatant.
THE RIGHT TO BUY A JUDGE
Last October, Justice At Stake, the Brennan Center for Justice, and the National Institute on Money in State Politics issued a report on judicial elections for the 2009-2010 election cycle, a period both before and after the Supreme Court's Citizen United ruling. "In its full context," the report's authors noted, "the most recent election cycle poses some ofthe gravest threats yet to fair and impartial justice in America." Here are some of the details:
A total of $38.4million was spent on state high court elections in 2009-10, slightly less than the last non-Presidential election cycle, in 2005-06. However, $16.8 million was spent on television advertising-- making 2009-10 the costliest non-presidential election cycle for TV spending in judicial elections. Outside groups, which have no accountability to the candidates, continued their attempts to take over state high court elections, pouring in nearly 30 percent of all money spent-- far higher than four years earlier.
Two states, Arkansas and Iowa, set fundraising or spending records in 2010, following a decade in which 20 of 22 states with competitive supreme court elections shattered previous fundraising marks.
Campaign funding of judicial elections, the 2011 Report found, was highest in states where the appellate courts were divided; i.e. courts where a single vote or two might change the outcome of controversial cases. So money poured into judicial elections in Pennsylvania, Michigan and Illinois. In Texas and Alabama, by contrast, where the state courts are dominated by Republican appointees, spending trailed off-- the battle there, for these corporate donors anyway, already having been won. And the Report found that conservative groups came to dominate contributions during that election cycle:
In 2009-10, business and conservative groups dominated the national list of 10 ten super spenders,accounting for seven of the top 10 groups, and for $10.5 million of the $14.9million spent. This disparity differs from the 2007-08 biennium, when the left and the right spent roughly equal amounts. Nine of the 10 highest spending groups in the 2009-10 cycle were identified as judicial-election super spenders in "The New Politics of Judicial Elections, 2000-2009: Decade of Change." Only the National Organization for Marriage, which spent $635,000 in the Iowa retention election, was a newcomer.
And the Report also found unsettling news about the way current judges are being targeted during retention races:
One category of judicial election spending stood out in 2009-10: the money explosion in retention elections. Incumbent justices faced unprecedented fundraising by the opposition in four states: Illinois, Iowa, Alaska and Colorado. Cumulatively,nearly $4.9 million was spent, with incumbents raising $2.8 million and independent groups spending near $2.1 million.
Those numbers have deeply disturbing implications. In the entire decade from 2000 to 2009, a time when special-interest spending skyrocketed on judicial elections, retention elections remained largely immune to big-money politics. With only incumbents appearing on the ballot, and voters deciding "yes" or "no" on whether to grant another term, candidates in retention elections raised just $2.2 million nationally in 2000-09, barely 1 percent of the nearly $207 million raised by high court candidates overall. By contrast, retention elections accounted for 12.7percent of all judicial election spending in 2009-10, including independent election campaigns.
Attacking incumbents is just one side of the coin. The other side is the money which pours in favoring a judge or judicial candidate. In August, the Center for American Progress published a lengthy study on the impact of corporate money on judicial elections. The results were as predictable as they are dismaying to anyone who cares about unbiased justice. It turns out that corporate donors get pretty much what they pay for when they contribute to a judge's campaign, whether the judge ever admits it or not. Here are just a few of the Center's findings:
The U.S. Chamber of Commerce, in particular, has become a powerful player in judicial races. From2001 to 2003 its preferred candidates won 21 of 24 elections. According to data from the National Institute on Money in State Politics, the chamber spent more than$1 million to aid the 2006 campaigns of two Ohio Supreme Court justices, and int he most recent high court election in Alabama, money from the state's chamber accounted for 40 percent of all campaign contributions.
The Appendix to this report lists all high court rulings on cases where an individual sues a corporation from1992 to 2010 in the six states that have seen the most judicial campaign cash in that time period-- Alabama, Texas, Ohio, Pennsylvania, Illinois, and Michigan. The data includes 403 cases from 2000 to 2010, and in those cases the courts ruled in favor of corporations 71 percent of the time. The high courts that have seen the most campaign spending are much more likely to rule in favor of big businesses and against individuals who have been injured, scammed, or subjected to discrimination.
We don't yet have any figures, of course, for the current election cycle but there is no reason to think that this trend has been reversed. The vast amount of money being spent on judicial elections is being spent because the people and corporations spending it are free to do so and because they believe that they are getting fair value in return for their costly investment. As the two reports suggest, it's hard to argue otherwise. A campaign contribution to a judicial campaign, even an expensive one, is a bauble compared to the value of a subsequent ruling that enhances a cause or a bottom line.
WHAT IT MEANS
These figures, and the ones contained in the two reports, should chill the blood of every citizen who believes in an independent judiciary and the critical role judges play in leveling the playing field for all litigants. The trend certainly has ticked off Sandra Day O'Connor, the retired Supreme Court justice who, not for nothing, is the only one of recent vintage who ever campaigned as a politician (she was a state senator in Arizona). She has devoted much of her post-Court life to crusading against such elections, lamenting the "flood of money coming into our courtrooms."
But judges, like everyone else, must take the world as they find it. And guess who state judges must turn to first for help in fighting off money's corrupting influence on judicial elections? The very same state lawmakers who, as we saw in Part I of this series, are typically hostile to judges in the first place and who are hardly interested in protecting the judicial branch from public criticism. Moreover, even if those lawmakers were somehow to see the light and seek again to protect judicial integrity, even if they passed a new law to that effect, the measure would generate an appeal to the Citizens United Supreme Court.
In the end, in the name of free speech, in the name of the First Amendment, the Supreme Court justices (who have life-tenure) have stripped away from their state court colleagues (who do not) the right to not act like politicians, the right to at least try to present to the world (and to the litigants before them) the image that they are beholden to nothing and no one but the law itself. Most Americans long ago gave up the hope that their politicians would act with such consistent integrity. But now that hope for its state judges is imperiled as well, thanks in part to venal campaign ads like the one above.
Of all the dubious effects of Citizens United, this may be the worst. Politicians come and go. So do campaigns and causes, policies and priorities. But once the integrity of the judiciary is stripped away, once the independence of judges is undermined by the most powerful, once the appearance of impropriety becomes the exception and not the rule, there may be no going back. And then where will Americans go, the vast majority of us who cannot afford to lobby the courts in this fashion, those of us who want to redress our grievances against the mighty, when we seek justice under our rule of law?
This is the second in a three-part series on the diminishing authority and integrity of state court systems in an age of anti-judicial legislation, corporate spending on judicial races, and the campaign-like intensity of judicial elections.
THE RIGHT TO TRASH A JUDGE
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