Sustained Outrage

An avalanche of cash in judicial campaigns, Pt. 1

With the election just days away, I thought now might be a good time to revisit the topic of money and judicial campaigns. Right now, with control of the U.S. Senate and the House of Representatives at stake, most of the media’s focus is on the flood of third-party cash poured into the closest congressional races without the true source of the funding being divulged. (Thank you, U.S. Supreme Court, for Citizens United.)

But as this report, jointly produced by, The Brennan Center for Justice, The National Institute on Money in State Politics and Hofstra Law School, documents how, over the last decade, the amount of money involved in judicial campaigns has exploded. And, as retired Justice Sandra Day O’Connor explains in her introductory letter, the glut of campaign cash has a potentially pernicious effect on the judicial system.

We all expect judges to be accountable to the law rather than political supporters or special interests. But elected judges in many states are compelled to solicit money for their election campaigns, sometimes from lawyers and parties appearing before them. Whether or not these contributions actually tilt the scales of justce, three out of every four Americans believe that campaign contributions affect courtroom decisions.

This crisis of confidence in the impartiality of the judiciary is real and growing. Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.

We all have a stake in ensuring that courts remain fair, imparitial, and independent. If we fail to remember this, partisan infighting and hardball politics will erode the essential function of our judicial system as a safe place where every citizen stands equal before the law.

The report itself concluded that in the past 10 years, $206 million has been spent on state Supreme Court races alone. Here’s what that looks like, in two-year units:

And here’s that $206 million figure broken down by source of funds:

Where does West Virginia figure into all of this? Well, with a total population of 1.8 million, which ranks 37th in the nation, West Virginia ranked 10th in spending over the past ten years, with almost $9.6 million in total spending.

Longtime readers will no doubt spot the influence of Massey Energy CEO Don Blankenship, whose financial involvement in the 2004 race resulted in the U.S. Supreme Court ordering winner Brent Benjamin off of a case involving an appeal of a verdict against Massey. (See previous coverage here, here, here, here and here.) The report sums it up this way:

The new politics of judicial elections arrived at the U.S. Supreme Court in the 2009 case Caperton v. Massey. The case, in which coal executive Don Blankenship spent $3 million to help elect Judge Brent Benjamin to the West Virginia Supreme Court in 2004, while his company appealed a $50 million jury award given to a competing coal company, crystallized the threat to due process when seven-figure judicial campaign supporters have business before the courts. When Justice Benjamin cast the tiebreaking vote to overturn the jury award, Hugh Caperton, owner of Harman Mining Corp., said his company’s right to a fair and impartial tribunal had been violated.

In the end, the U.S. Supreme Court agreed. Ordering Justice Benjamin to remove himself from the case, the court for the first time ruled that campaign spending could threaten a litigant’s due-process rights: “Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome,” Justice Anthony M. Kennedy wrote for the majority. “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the other parties’ consent—a man chooses the judge in his own cause.”

And this, as the report notes, was before Citizens United, which freed third parties to spend as much money as they want without disclosing where the money came from.

With so much at stake, and so much money at play, there has also been a corresponding rise in spending for television ads. And, as anyone with a TV set who has watched more than five minutes within the last few months, more campaign ads are not necessarily a good thing. And who is most likely to run the really dirty, attack-style ads? Third parties. Again, the report has a striking graphic to illustrate this point:

But West Virginia, with no major media markets, probably misses out on all that TV ad spending, right? Nope. Seventh nationwide.

In a chapter that should come as no surprise to anyone who follows the hue and cry surrounding judicial elections, the report identifies two major groups who are fighting over control of the court. On the one side are business interests and the U.S. Chamber of Commerce, on the other are plaintiffs lawyers and unions.

Here are the lists and descriptions from the report:

The Left
Plaintiffs’ lawyers and unions formed one key side in the battle for America’s courts that reached full force in 2000-2009. Their primary goals were to elect judges sympathetic to them on tort-reform and product liability issues.

Unlike their conservative counterparts, these groups generally organized and raised funds at the state level. One national group, the Democratic Judicial Campaign Committee based in Washington, D.C., failed to play a major financial role. Especially in Alabama, Illinois and Texas, lawyers contributed cash through the Democratic Party to mask their support of candidates.

While the lawyers and unions spent millions on swing elections, they lost ground in several key states early in the decade, notably including Alabama, Illinois, Michigan, Mississippi, Ohio, West Virginia and Wisconsin, after previously losing control of courts in Texas and Louisiana. Plaintiffs’ lawyers regained the upper hand in Michigan in 2008, in a year that signaled a possible broader comeback.

Key Players
Philadelphia Trial Lawyers Association
Greater Wisconsin Committee
Michigan Democratic Party
Alabama Democrats/plaintiffs’ lawyers
Illinois Democrats/plaintiffs’ lawyers
Texas Democrats/plaintiffs’ lawyers
Democratic Judicial Campaign Committee
The late Fred Baron

The Right
Business groups and other conservative organizations organized nationally as the decade started, hoping to reverse what they perceived as excess influence on elected courts by the plaintiff bar.

At least eight national groups, many based in or near Washington, D.C., have spent directly or indirectly on state Supreme Court elections. While the U.S. Chamber of Commerce worked largely through its state chapters, the National Association of Manufacturers created a Michigan-based spinoff, the American Justice Partnership, to coordinate campaign efforts. Two national spenders, the Center for Individual Freedom and the Law Enforcement Alliance of America, have historic ties to big tobacco and the gun lobby, respectively, but their financial backing for specific court election campaigns remains unknown.

The national strategy proved highly effective, winning control of numerous state courts before suffering a partial reversal in 2008, when three business-backed chief justices were voted out of office.

Key Players
U.S. Chamber of Commerce/State Chapters
American Justice Partnership/National Association of
Center for Individual Freedom
Law Enforcement Alliance of America
American Tort Reform Association
American Taxpayers Alliance
Club for Growth
Pennsylvania State Republicans
Business Council of Alabama