Report: Judicial Campaign Contributions By Business Donors Yields Votes

Do campaign contributions play a role in judicial outcomes? 76% of voters and 46% of judges think so. New empirical data confirms the suspicion, especially when the contributions come from large business interests. As Dylan Matthews at the Washington Post puts it: When business give judges money, they usually get the rulings they want.

The study – Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions by Joanna Shepherd – reviewed more than 2,300 business-related state supreme court published opinions from all 50 states during the period 2010-2012. That data was correlated with every reported contribution to a sitting state supreme court justice – more than 175,000 contributions. The study confirmed "a significant relationship between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters. The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court."

The Issue

According to Shepherd's data, more than 90% of litigation in the United States is handled by state courts. And in 89% of state courts, judges face the voters in some type of election. In directly contested elections (whether partisan or non-partisan), campaign contributions raise suspicions of improper influence. Shepherd's data, unfortunately but not entirely unsurprisingly, suggest the suspicions are well-founded.

Some states have direct, popular election of judges. These elections bring with them the stigma of campaign contributions and the potential for undue influence. Other states have adopted a "federal" model in which judges are appointed and confirmed by the legislature. This process injects a high degree of politics into the system in which political allies are often chosen ahead of more qualified candidates. Other states, like Missouri, have adopted non-partisan merit selection of judges in which candidates are selected based upon their ability and skill. The Missouri Plan attempts to eliminate political and financial considerations from judicial selection in order to find the most qualified judges.

Justice for Sale?

In 2011, The New York Times asked: Can Justice Be Bought?

The question arose out of a United States Supreme Court decision in Caperton v. A.T. Massey Coal Company. In the underlying case, a West Virginia jury found coal company Massey Energy liable for fraudulent misrepresentation, concealment, and tortious interference with contract in a business-litigation suit and awarded Caperton $50 million in damages. After the decision, West Virginia was to hold its 2004 judicial elections.

Know the state Supreme Court of Appeals would consider the appeal, Massey's chairman – Don Blankenship – supported the challenger rather than the incumbent seeking reelection. Massey's and Blankenship's combined $3 million in campaign cash was more than the total amount spent by all other supporters and by the judge's own campaign committee.

The challenging judge won by less than 50,000 votes… and then heard Massey's appeal of the $50 million verdict against it. The newly elected judge was the deciding vote in overturning the verdict.

In a disturbingly close vote, the United States Supreme Court voted 5-4 that the newly elected judge should have recused himself in order to uphold the rule of impartial justice. Four justices didn't see anything wrong with the conduct. In fact, Chief Justice Roberts found that Massey's conduct was not even an "extreme case".

The Appearance of Impropriety

Regardless if such decisions are intentional or subliminal, even the appearance or suspicion of impropriety will have lasting detrimental effects on the justice system.

Having worn a judicial robe for a few months shy of thirty years, having run and won five times in partisan elections, having been involved in the most expensive appellate court race in the nation in 2006, I am sincerely concerned about judicial elections, the obscene amount of money which has flooded into campaigns, and the damage that has been done to the image of our beloved judicial system. The politicization of the courts puts justice at risk.

– Former Alabama Chief Justice Sue Bell Cobb

Supreme Court Justice Sandra Day O'Connor has also spoken out against partisan influence on the judiciary:

If judges are subject to regular and competitive elections, they cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their re-election prospects. As the late California Supreme Court Justice Otto Kaus described it, ignoring the electoral pressure would be like "ignoring a crocodile in your bathtub."

– Sandra Day O'Connor, The Essentials and Expendables of the Missouri Court Plan, 74 Mo. L. Rev. 479, 487 (2009).

Ohio Supreme Court Justice Paul Pfeifer put it more bluntly:

"I never felt so much like a hooker down by the bus station… as I did in a judicial race. Everyone interested in contributing has very specific interests. They mean to be buying a vote."

Key Findings

Shepherd noted some key findings from her study:

• A significant relationship exists between business group contributions to state supreme court justices and the voting of those justices in cases involving business matters.
• The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court.
• A justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.
• The empirical relationship between business contributions and justices' voting for business interests exists only in partisan and nonpartisan systems; there is no statistically significant relationship between money and voting in retention election systems.
• There is a stronger relationship between business contributions and justices' voting among justices affiliated with the Democratic party than among justices affiliated with the Republican Party.

Solutions

Shepherd's findings with respect to merit selection / retention elections are critical. She found no statistically significant relationship between money and voting in retention election systems meaning that merit selection systems like the Missouri Court Plan subject to retention election do a good job of removing political and financial incentives from the judicial equation.

An apolitical, independent judiciary comprised of qualified judges is critical to upholding the rule of law and individual rights of Freedom and Liberty. Fairness. Justice. Liberty. Rule of Law. These are not partisan issues. These are not Democratic vs. Republican issues. There is enough politics in the legislative and executive branches, we should keep politics out of our courts. Cases should be decided on the fact and the law, not by partisan politics funded by special interest groups.

[More on Judicial Selection]

Read More:

• Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions [Joanna Shepherd at American Constitution Society for Law and Policy]
• When businesses give judges money, they usually get the rulings they want [Dylan Matthews at Washington Post]
• The Missouri Plan: Non-Partisan, Merit-Selection of Judges

© Copyright 2013 Brett A. Emison

Follow @BrettEmison on Twitter.