Tuesday, June 14, 2011

A survey of judicial campaign finance reform in America

  • Kang, Michael S. and Shepherd, Joanna, The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions (May 27, 2010). Emory Public Law Research Paper No. 10-115; Emory Law and Economics Research Paper No. 10-74; New York University Law Review, Vol. 86, No. 1, 2011. Available at SSRN: http://ssrn.com/abstract=1649402
Do campaign contributions affect judicial decisions by elected judges in favor of their contributors’ interests? Although the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co. relies on this intuition for its logic, it has been until now largely a proposition that has gone empirically untested. No longer. Using a dataset of every state supreme court case in all fifty states over a four-year period, we find that elected judges are more likely to decide in favor of business interests as the amount of campaign contributions that they have received from those interests increases. In other words, every dollar of direct contributions from business groups is associated with an increase in the probability that the judges will vote for business litigants. However, we find surprisingly a statistically significant relationship between campaign contributions and judicial decisions in favor of contributors’ interests only for judges elected in partisan elections, not nonpartisan ones. Our findings suggest an important role of political parties in connecting campaign contributions to judicial decisions under partisan elections. In the flurry of reform activity responding to Caperton, our findings support judicial reforms that propose the replacement of partisan elections with nonpartisan methods of judicial selection and retention. 

A new national poll commissioned by the Justice at Stake Campaign shows that a bipartisan majority of Americans believe elected judges deliver favored treatment to their campaign backers, and similar majorities support reforms to curb the perception that justice is for sale.  Harris Interactive surveyed more than 1,000 voting-age citizens between June 9 and 13 about potential conflicts of interest arising from judicial campaign contributions; the survey results overwhelmingly indicate that a majority of Democrats and Republicans believe judicial campaign contributions impact courtroom decisions; favor public disclosure of campaign expenses; and support recusal rules, among other reforms proposed to reduce special-interest influence in the courtroom.

A commentary in Newsworks echoes the concern that the influence of money and political connections on judicial elections undermines public confidence in the judiciary and argues that [the state of] Pennsylvania should adopt a process of merit selection.

A new poll indicates that an overwhelming majority of North Carolina voters believe campaign contributions to judicial candidates can affect a case’s outcome in the courtroom, and that judges should not hear the cases of major campaign contributors.  The poll found that 94 percent of North Carolina voters believe campaign contributions have some influence on a judge’s decision in a case involving a donor, and 85 percent believe judges should step aside from hearing cases that involve major campaign contributors. A joint press release by the organizations that sponsored the poll, the Justice at Stake Campaign and the North Carolina Center for Voter Education, says that these findings explain why public support for North Carolina’s judicial public financing remains high, since “voters want to preserve a program that keeps campaign cash out of the courtroom."

Public financing plays a particularly valuable role in judicial elections, where it not only helps to prevent quid pro quo corruption, but also protects elected judges against the appearance of bias in the courtroom.  As Wisconsin federal judge William M. Conley recently observed (in a ruling upholding the constitutionality of the Impartial Justice Act), “judges—even when popularly elected—are not representative officials, but rather are expected to be, and to appear to be, impartial and independent in applying the rule of law.”  Judge Conley is right.  We need elected judges to treat all parties equally, regardless of whether they’ve offered campaign support. 

The Caperton case—in which Massey Coal CEO Don Blankenship spent $3 million to elect Justice Brent Benjamin while he was seeking to overturn a $50 million jury award—sparked national publicity on the potential conflicts caused by special-interest spending on judicial elections.

Citing the 14th Amendment Due Process Clause, which grants every litigant the right to an impartial trial, the Court said a “serious risk of actual bias” was created when Justice Benjamin cast the tie-breaking vote to overturn the jury’s decision.

Since Caperton, most states have failed to take any meaningful action [reforms].