Sustained Outrage

Do campaign dollars sway judges?

The Brennan Center for Justice‘s Adam Skaggs published an interesting article titled “Judging for Dollars” in The New Republic over the weekend. It’s another look at judicial elections in the wake of the U.S. Supreme Court‘s 5-4 decision in the Citizens United case.

Refreshingly, the article’s starting point is not the 2004 West Virginia state Supreme Court election that saw Brent Benjamin unseat Warren McGraw, with Massey Energy CEO Don Blankenship spending millions of his own money on anti-McGraw campaign advertising. (Blankenship’s outsize contributions later caused the U.S. Supreme Court to order Benjamin to step down from an appeal involving Massey.)

Instead, Skaggs highlights a Supreme Court race in Illinois during the same year, in which candidates raised a record $9.4 million. (By contrast, Supreme Court candidates in West Virginia, with a population roughly one seventh the size of Illinois’, raised $2.8 million in 2004.)

And the circumstances surrounding the Illinois race (which could easily apply to the legal climate here) were not an anomaly, Skaggs wrote:

The eye-popping fundraising resulted from a parade of special interests on both sides of the “tort wars.” The fifth district had been known for large damage awards against corporate interests, and the election’s winner was expected to play a crucial role on a closely divided Illinois supreme court. Trial lawyers funneled millions to [Gordon] Maag, while [Lloyd] Karmeier got buckets of cash from the U.S. Chamber of Commerce. Karmeier also got a boost from a company with a very real interest in the race’s outcome: State Farm Insurance Company, which happened to be appealing a damage award of more than $450 million. Karmeier got $350,000 in contributions from employees, lawyers, and others directly involved with State Farm and another $1 million from larger groups affiliated with the company. After he won the election, Karmeier cast the deciding vote that saved State Farm roughly a half-billion dollars.

The Illinois election wasn’t an anomaly. In the last decade, state judicial elections across the country have evolved from quiet, civil contests into extravagant affairs with exorbitant spending, mud-slinging, and bitter personal attacks. Special interests in particular have helped engineer many of these races, pouring money into campaign coffers and negative TV ads. For instance, in a 2006 race in Washington—the most expensive judicial election that state had ever seen—every TV spot was paid for by a special interest group. As an Ohio AFL-CIO official put it, “We figured out a long time ago that it’s easier to elect seven judges than to elect one hundred and thirty-two legislators.”

According to polls cited by Skaggs, three out of four Americans (and almost one in two judges) think campaign contributions affect the way judges rule in cases. And a 2006 New York Times study of Ohio justices suggests that there is a correlation between contributions and votes, Skaggs noted:

The study found that, over a twelve-year period, Ohio justices (including Pfiefer) routinely sat on cases after having received campaign contributions from the parties involved. And, in those cases, the judges voted in favor of their contributors in seven cases out of ten. One justice voted for his contributors 91 percent of the time.

Skaggs praises states that, like West Virginia during the just-ended Legislative session, have enacted public financing for judicial elections.

Of course, public financing in West Virginia doesn’t go into effect until 2012, and there’s a statewide judicial election this year (to elect a justice to complete the rest of late Justice Joe Albright’s term).

Candidates John Yoder, a Circuit Court judge from the Eastern Panhandle, and Justice Thomas E. McHugh, who was appointed by Gov. Joe Manchin to take Albright’s seat in 2009, just had to file their initial campaign financial statement last week with the Secretary of State’s office. So far, McHugh has outraised Yoder by a count of $164,801.74 to $1,225.00, although I’m confident that won’t stay so lopsided for long. Most of McHugh’s contributions — $95,000 — came during a November fundraising event held at the Charleston home of lawyer Scott Segal (who is the husband of McHugh’s colleague on the court, Chief Justice Robin Davis). Predictably, the vast majority of McHugh’s contributors are lawyers.

I didn’t find any independent expenditures for 2010 listed on the Secretary of State’s Web site, but, in the wake of Citizens United, it will be very interesting to see who spends what on whom. Stay tuned.