Justice on the take

Outside groups helped make the 2014 elections the most expensive midterm campaigns in U.S. history. But it wasn't just aspiring governors and legislators who benefited from the flood of dark money unleashed by the 2010 Citizens United vs. Federal Election Commission decision, which prohibited the government from restricting campaign contributions by nonprofit corporations and other independent groups. 

Since 2011, special interest groups have significantly increased their targeting of judicial campaigns in the United States. Groups such as the Americans for Prosperity and the Center for Individual Rights — which are funded by conservative billionaires Charles and David Koch and exist largely, as Andy Kroll put it in Mother Jones, to “keep dark money in the dark” — have committed unprecedented sums to influence state judicial elections, including a number of key state supreme court retention races.

While overall spending declined from the last elections — in part due to the absence of contested races in the expensive states of Pennsylvania and Alabama — the 2014 electoral cycle broke several state spending records, according to the Brennan Center for Justice.

In Tennessee a record $2.4 million, mostly in TV advertising, was funneled into three state Supreme Court retention races. Similarly, outside groups helped push fundraising for judicial candidates in North Carolina to $5.2 million — more than double the previous record. This comes barely a year after the state’s Republican-controlled legislature defeated a public-financing program designed to limit the influence of special interests on judicial elections. 

Nearly all the outside spending was contributed free of disclosure requirements, and a large percentage came from conservative groups based in Washington, D.C. Not a single outside group targeting state judicial elections this year was aligned with the Democratic Party, according to The Wall Street Journal.

The Republican State Leadership Committee (RSLC) purposely targeted judicial elections in several key states. But its efforts were largely unsuccessful. In at least four states (including North Carolina) RSLC-backed candidates failed to unseat incumbent justices. In Tennessee, voters retained three Supreme Court justices despite an RSLC-funded ad campaign that called the court “the most liberal place in the state.” Slate’s Mark Stern opined that conservatives’ costly failure is proof that American respect for the sacredness of the courts is too great for voters to be influenced by baseless attack ads.

Even if his optimistic assessments are true, the rush to throw undisclosed money into state-level judicial races signals that a dangerous movement has been taking shape since the Citizens United ruling. And its potential to corrupt is not limited to the voting booth or to one political party. To make matters worse, last month the U.S. Supreme Court agreed to hear a First Amendment challenge to a Florida law that bars judicial candidates from personally soliciting campaign contributions. Given the court’s track record of applying speech protections to the movement of money, the outcome doesn’t bode well for judicial independence.

Before the Nov. 4 midterms, a number of prominent voices from across the political spectrum weighed in on the effects of the increasing flood of money into judicial elections.

The editorial boards of The Washington Post and The New York Times raised alarms about the influence of unregulated dark money in judicial elections. Last month The Wall Street Journal noted that the rash of spending is “eroding traditions under which judges could avoid [the] ethically tricky process of stumping for votes.”

Norm Ornstein, a resident scholar at the American Enterprise Institute for Public Policy Research, has argued that unlimited campaign spending threatens to “undermine the whole idea of an independent judiciary” by making jurists indebted to parties with an invested interest in their decisions. 

The intangible effects of high-stakes campaigning on the judicial process are alarming. A recent report from the progressive American Constitution Society linked the negative ripple effects of ad spending with tough-on-crime jurisprudence. The correlation was subtle, but direct: The more TV ads aired during state Supreme Court elections, the less likely justices are to vote in favor of criminal defendants. Citizens United exacerbated the influence of money on judicial decision-making. The researchers found a measurable decrease in justices voting in favor of defendants in the 23 states that had bans on corporate or union independent expenditures prior to 2012.

“As more national players seek to bully and buy the courts, our constitutional right to a fair day in court is in jeopardy,” warned Bert Brandenburg, the executive director of Justice at Stake, a nonpartisan coalition seeking to reduce special interest influences on U.S. courts.

The well-documented effect of Citizens United on judicial elections has re-energized a decades-long debate over whether judges should be elected at all. Today 32 U.S. states hold competitive elections for at least some appellate and major trial court judges, and seven other states hold retention elections for sitting justices.

Ornstein calls judicial elections an “abomination.” He blames the increasing politicization of the judiciary on conservative activists such as James Bopp — who made dismantling even the most rudimentary campaign finance restrictions his life’s work and insists that judicial elections make sitting judges accountable to everyday citizens. These activists assume that judges should be directly accountable to citizens. However, as impartial arbiters of the law, judges should be free from direct accountability to those who may one day find themselves before them. They should be dedicated instead to the conscientious application of the Constitution and of statutes adopted by elected representatives of the people. Judges who abuse that privilege should face impeachment, but leaving something so critical to the whims of the electorate is a dangerous experiment.

Our founders understood this, which is why they believed judges should be insulated from the political process and favored permanent appointments for jurists who remained in good behavior. It wasn't until the populist Jacksonian reforms of the 1830s that voters began choosing judges. Those who believe in direct public accountability for judges would do well to consider that most citizens do not contribute to judicial campaigns. Rather, business interests and lawyers account for nearly two-thirds of contributions to state supreme court candidates. Average citizens, on the other hand, are most likely to suffer under the status quo.

In 2004, Gregory Huber and Sanford Gordon analyzed more than 20,000 criminal cases over a decade in Pennsylvania and found that judges imposed higher sentences on defendants in election years. The study found that at least 6 percent of prison time, or an average of 2,000 additional years of incarceration, can be indirectly attributed to judicial elections. 

There are better ways than popular election to select jurists. The rest of the world knows this, which is why the U.S. remains an outlier in its reliance on judicial elections. The last thing judges should be thinking about in the minutes before sentencing a defendant is how the ruling could be portrayed on television the next time they are up for re-election. Since the Supreme Court shows no signs of stanching the flow of unrestricted money in electoral campaigns, it is time to start pressuring our state legislatures to heed the founders' call and divorce the judiciary from the political process.