Campaign cash finds its way to the courtroom

December 14, 2011

By Adam Skaggs and Bert Brandenburg
The opinions expressed are their own.

Attacks on judges who “legislate from the bench” are commonplace in conservative politics, but the current crop of Republican presidential contenders has taken attacking the judiciary to a new level.  New frontrunner Newt Gingrich is the most outspoken — promising that if elected, he would impeach judges, abolish judgeships, and ignore court rulings he doesn’t like.

Gingrich’s plans violate basic constitutional norms and would set off a constitutional crisis.  But, ultimately, they ring hollow:  however effective in motivating the Republican base, the attacks on the courts are not credible policy proposals.

Outside the realm of presidential politics, however, there is a looming — and very serious — threat to our justice system.  Despite all the attention focused on money in politics, few Americans know how much campaign cash is pouring into courts of law, and how it threatens to undermine equal justice for all.

Judges are elected in 39 states, and in recent years, judicial election spending has skyrocketed. In the last decade, spending on state high court elections more than doubled — candidates raised $206.9 million between 2000 and 2009, compared to only $83.3 million in the 1990s.

Now a new report shows that the percentage of outside spending by special interests and political parties nearly doubled in the most recent judicial election cycle, compared with the previous mid-term election. The report — from the Justice at Stake CampaignBrennan Center for Justice, and National Institute on Money in State Politics — shows that  just 10 “Super Spender” groups accounted for nearly $15 million in total spending in 2009-2010 — almost 40 percent of every dollar spent on high court elections.

All of these numbers threaten a value cherished by most Americans, one that is central to our democracy: fair, impartial and equal justice. Court cases are supposed to be decided by the law, not by who wrote the biggest campaign check to the judge.

These numbers also worry Americans.  In a survey of 1,000 voters, 83 percent said campaign contributions have a “great deal” or “some” influence on a judge’s decisions; 93 percent believe judges should not hear cases involving major financial supporters; and 84 percent believe that all contributions to a judicial candidate should be “quickly disclosed and posted to a web site.”

Voters clearly recognize the risks to fair and impartial courts when judges have to depend on deep-pocketed benefactors to gain a seat on the bench.  And with the influence of outside groups growing in judicial races across the country, these risks will only increase.

Even more alarming is the fact that at the same time a surge in secret spending has transformed high court elections, state courts are facing other, dire threats.

Increased spending by outside groups in the last election cycle was the logical culmination of a decade of efforts to inject partisanship into our courts, and anti-court partisans didn’t stop after Election Day. Throughout the winter and spring, they launched a ferocious round of legislative attacks on reforms designed to protect courts from special interests, including challenges to merit selection systems, assaults on public financing of judicial elections, and an unprecedented number of legislative threats to impeach state judges.

And these attacks came just as the widespread economic crisis has decreased funding for the judiciary in states across the country, putting extraordinary fiscal pressures on courts at precisely the same time foreclosure proceedings and consumer debt cases are swelling caseloads.

State judiciaries are caught in a vise, squeezed on one hand by interest groups waging an unrelenting war to impose partisan political agendas on the bench, and on the other by devastating fiscal pressures.  As the Supreme Court continues to weaken campaign finance laws, and the nation prepares for the most expensive election cycle in history next year, elected judges will only see more pressure from outside groups—increasing public concern that justice is for sale.


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[…] A flood of special interest cash in judicial elections, legislative attacks by anti-court partisans and severe budget shortfalls are putting enormous pressure on impartial state courts, two nonpartisan reform groups say in a Reuters commentary. […]

Posted by Gavel Grab » JAS, Partner Group: ‘State Judiciaries … Caught in a Vise’ | Report as abusive

Just more of the Greed Plague, sweeping the world and the grasp for power that has taken over the country. In my mind it has its roots in Godless people who think they are Gods and that they are going to live forever. (ala-Bill Gates and Warren Buffet.)

Posted by fred5407 | Report as abusive

The USA needs a College of Cardinals like a hole in the head. But we have one anyway, with the Supreme Court.

Since when did our courts have anything whatever to do with justice? They are about the ultimate in individual, virtually unchecked raw power, wielded with impunity from prince-for-life positions. They are as undemocratic as the House of Lords. American life peers.

Any American who has been victimized by American courts, and that is almost all Americans who have stood before a Judge, knows the feeling of raw power ripping down from Olympian heights. Few feel well treated. And neither the Courts not the Administration nor the Congress care. Any move to make these Princes for Life more accountable to the people they rule is a step in the right direction.

It would be difficult to make the case that Congress is any more corrupt than the Courts.

Just another run-away part of Government, distant, non-responsive and absolute.

Posted by txgadfly | Report as abusive

Totally unacceptable form of running any branch of government, we need to reform campaign financing/limits and ultimately how judges and politicians appeal to the public in order to get elected– this is not democracy.

Posted by AldoHux_iv | Report as abusive

Let’s assume judges are not going to be elected, and therefore no campaign contributions. Would it really make a difference? In order to be appointed, instead of elected, one needs very significant ties to politicians – just like any political position. I am not so sure that gives us a better result.

Posted by SayHey | Report as abusive

It cannot be fixed. Influential individuals and institutions will always be corrupted by financial gain. No system allows for the complete separation of wealth from control.
A fair and just legal system is just as far-fetched as as an ideal Democracy.
Anarchy and revolution resulting in creating new forms of Governments and controls has had no real results.
Over the centuries no such success has been achieved and therefore no expectation of a non corrupt system is to be expected.

Posted by rcd1160 | Report as abusive

So how is our political system to respond to this threat if it is already bought and paid for?

Posted by OFA7 | Report as abusive

Just because a judge receives money from a certain group of attorneys say, or a certain ‘misunderstood individual’….. does not mean the judge’s ruling would be swayed by that money. Justice is blind. All parties would get a fair trial. And the more money the judge gets…. the more fair the trial gets :)

This is like Honduras… but with Jon Corzine on hand. Good times.

Posted by AlkalineState | Report as abusive

TThere has always been a legal system ‘outcome bias’ in favor of the rich and powerful and that is/was their ability to employ ‘better’ and more attorneys than their opponent be it a local prosecutor or opposing attorney.

With the amount of dollar$ being spent by secret groups to oppose a judgeship candidate or elect their candidate the systemic bias now increases geometrically. As we have seen the conservative right continue to rant and rave about ‘librul activist judges’ while in fact most Federal Appeals Court districts have more conservative appointees than not. Now we have a SCOTUS dominated by Activist Conservative judges willing and determined to roll back consumer protections, ignore years of precedent, issuing ruling favoring industry and wealthy causes; the recent and egregious decision on Citizens United vs. FEC ignoring over 150 years of precedents to rule against the FEC.

Frankly I’m not optimistic about meaningful reform with the Legislative and Executive branches tied in contentious ideological conflict and scoring political points without regard for public policy.

IMHO, the most effective methods to create change would be to demand abolishing the Electoral College and electing a POTUS by a simple majority. The next change would be voters demanding that the Senate abandon self imposed and outmoded procedural rules and return to legislation pass by a simple majority vote and no member having the singular right to place holds on any bill before the body nor any individual or party allowed to block any bill from consideration by the Senate.

All the above must be demanded by voters until received; without that it will remain business as usual. AND don’t ever attempt to say that both parties are equally to blame – THEY ARE NOT and public records show that one party uses obstructionist tactics far more than the other!

Posted by JBltn | Report as abusive

SayHey, judges should be elected…but without millions of dollars invested by special interests in their campaigns to assure ‘fair’ judgment for one side only. There should be no politicians, only be representatives of the people reflecting the concerns of their constituents. That lack of representation is the core problem along with corruption, something that must be rectified regardless of your political position.

Posted by bitbyt | Report as abusive

Just keep in mind which wing of politics supported allowing judges who accepted large campaign sums from likely litigants to sit on cases involving them; it’s the Caperton v. Massey Energy Supreme Court decision from just a few years ago.

Posted by borisjimbo | Report as abusive

[…] Bert Brandenburg and Adam Skaggs of the Brennan Center for Justice, a JAS partner group, wrote in a Reuters commentary that Gingrich’s attacks “ultimately … ring hollow:  however effective in […]

Posted by Gavel Grab » Gingrich Role in Iowa Judicial Ouster Drive is Spotlighted | Report as abusive

[…] the tile of an op-ed by two of our our partners — Justice at Stake’s Bert Brandenburg and the Brennan […]

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