Money Mattering More in Judicial Elections

Record amounts of money are pouring into state judicial elections, raising concerns that special interests are gaining influence and undermining the impartiality of some of the states’ highest courts.

In November, state supreme court seats will be filled by voters in 29 of the 38 states that elect their justices. Predictions are that candidates will raise and spend campaign money at an even greater rate to land seats on state high courts than the record almost $29 million spent in 2002.

Experts already are expecting hard-fought races in Illinois, Alabama and Mississippi.

Of the $29 million raised for state high court races in 2002, more than $10.7 million came from lawyers, $8.4 million from businesses, $2.8 million from political parties, $2.3 million from candidates, $650,000 from labor groups and the rest from small contributors and unknown sources, according to a new report by the Justice at Stake Campaign, a Washington-based coalition of 40 groups advocating for an impartial judiciary.

In the 33 states that elected justices in 2002, campaign fund-raising exceeded $1 million in seven states: Alabama, Illinois, Louisiana, Mississippi, Ohio, Pennsylvania and Texas. In those states, the winning candidates spent an average of more than $790,000. Successful judicial candidates increasingly are turning out to be those who raise the most money, the May 6 report said.

The average funds raised by judicial candidates has climbed steadily in the past four election cycles, the report found. In addition, the lion’s share of judicial campaign fund-raising in the past four years occurred in the nine states with partisan judicial elections in which candidates are affiliated with a political party, the report found. Candidates in states with partisan judicial elections raised an average of $471,000 in 2002, the report said.

Twelve states hold non-partisan elections and 17 others give voters an up-or-down vote on a justice appointed by the governor. In the 12 remaining states, justices are appointed by the governor, similar to the federal system in which judges are appointed by the president and confirmed by the U.S. Senate.

In the past decade, winners in state high court races have outdone losers at campaign fund-raising by a margin of $91 million to $53 million, according to the report. In the last election cycle, the top fund-raiser prevailed in 20 out of 25 contested supreme court races.

U.S. Sen. John McCain, R-Arizona, who co-authored a new law to limit the influence of campaign money in federal elections, is one of those who worry that the trend in state judicial elections could cause the public to question whether legal principles or special interests hold more sway with state judges.

“The perception of corruption could completely undermine our judicial system,” McCain said. “That perception must end.”

North Carolina is one state that has begun reforming its judicial elections. This year, it launches the nation’s first public financing program for judicial elections. Its law also makes judicial elections non-partisan and provides for an information guide to acquaint voters with judicial candidates, who often are less well known than candidates for legislative or executive posts.

North Carolina’s public financing program is funded through donations from lawyers and a voluntary $3 check-off on the state’s income tax forms.

Legislators and reformers in a host of other states are keeping an eye on North Carolina’s program during its test run in November.

Campaign reformers point to Ohio’s 2002 election in which four candidates battled for two supreme court seats as the poster child for what is wrong with judicial elections.

Candidates raised $6.2 million in 2002 in Ohio’s supreme court races, the most in the nation. Each candidate raised more than $1 million. Winners Maureen O’Connor and Evelyn Stratton raised $1.8 million and $1.2 million respectively. Each spent about $1 million on television advertising alone.

Ohio’s chief justice has endorsed public financing of judicial campaigns, but the idea has not been formally introduced as legislation.

“Like many states, we are broke,” said Catherine Turcer, legislative director of Ohio Citizen Action, a campaign reform group. “So we are trying to figure out how we could garner the money.”

In addition to considering public financing options and voter guides, a number of states are weighing bills modeled after a provision of the federal McCain-Feingold law to make campaign financing more transparent. Illinois is the only state to enact such a law.

“States have been looking at this for awhile,” said Heather Morton, who tracks courts issues for the National Conference of State Legislatures. “They’ve been trying to make it work and continue to make it work. They don’t want to make it so onerous that you can’t get a judge.”

Roger Pilon, director of the CATO Institute’s Center for Constitutional Studies, says even more needs to be done to insulate state judicial branches from electoral politics. Pilon said he would like to see more states move towards the federal model in which judges are appointed and confirmed.

“I tend to be opposed to election of judges in the first place,” he said. “The role of a judge is to apply the law to the cases or conflicts that come before him. That is not a political process.”

Hand-in-hand with criticism of the amount of money flowing into judicial races are concerns about an increased reliance on television ads to get a candidate’s or special interest group’s message across.

The report found that in nine of the 11 races in 2002 in which TV ads ran, the candidates with the most TV time were the winners. Twice as many interest groups almost half of them representing businesses ran television ads for judicial candidates in 2002 compared to 2000, and in twice as many states as in 2000, the report said.

“The spread of television ads, and its correlation with success do not bode well for state courts,” said Deborah Goldberg, of the Brennan Center for Justice at New York University School of Law and one of the report’s authors. “We don’t want judges making decisions with one eye on the law and the other on their campaign funding for the next election.”

Traditionally, state judicial candidates have shied away from talking about issues they might have to decide and instead have campaigned strictly on their qualifications and ideas for improving the judiciary. But more and more, controversial issues have crept into judicial campaigns.

Plus, a new factor is now in play. The U.S. Supreme Court in 2002, in a casetitled Republican Party of Minnesota v. White, struck down a law prohibiting candidates for judicial office from announcing their views on “disputed legal or political issues.” Reformers say the ruling paves the way for judges to signal how they might vote if they are elected to the bench.

In 2002, Ohio’s Stratton ran a campaign ad touting her nickname: “the velvet hammer,” which her ad says she earned for being tough on street and corporate crime. In Illinois, candidate Sue Myerscough’s ad in 2002 boasted that she “kept children safe from sexual predators and kept violent juveniles off [the] streets.” Myerscough promised to continue to battle crime if elected to the supreme court.

In addition, interest groups run their own ads. Every interest group that ran an ad in the 2002 judicial elections alluded to a hot-button topic, such as criminal justice, victims’ rights, corporate fraud or frivolous lawsuits, according to the report.

The number of attack ads in judicial races also is on the rise, the report said.

“Judges make decisions one at a time based on the facts of the law,” said James Wynn, a N.C. Court of Appeals judge who this year is running for a seat on the state’s supreme court. “If they promise how they are going to vote beforehand, that’s not justice.”