An impartial judge is often taken for granted, but big money talks, even in the American judiciary. A report released this week reveals that private industry and special interest groups spent the past decade pouring record amounts of money – often through “secret channels” and front groups – into judicial campaigns to sway top state courts.
Fundraising for state judicial campaigns has more than doubled from $83 million in the 1990s to $206 million from 2000 to 2009, according to report, which calls the increase in spending “pronounced and systemic.” In the past decade, 20 of the 22 states that hold Supreme Court elections had their most extravagant judicial campaign seasons to date.
The authors of the report, titled “The New Politics of Judicial Elections 2000-2009: Decade of Change,” explained their findings in a news conference on Wednesday.
“We really saw a tidal wave of cash into court elections,” said Charles Hall, communication director for the Justice at Stake Campaign and editor of the report.
The report identifies a list of judicial campaign “super-spenders,” whose ranks include the US Chamber of Commerce and infamous coal baron Don Blankenship.
“The greatest concern is that anyone who wants to runs for Supreme Court really depends on supers spenders … who want to put people on courts to push their agendas,” Hall said.
The authors compared the upswing of spending on vicious TV attack ads during the past decade to an escalating “arms race” that demands the funds that only special interests can afford. Ad campaign spending totaled $93 million and topped out at $26 million during the 2007 to 2008 cycle.
By 2009, more than half of TV ads about judicial candidates were paid for by third parties and special interest groups, according to co-author Adam Skaggs of the Brennan Center for Justice. Skaggs said that these third parties “played attack dog” and were responsible for about 90 percent of ads attacking judicial candidates.
Big business and special interest groups often funnel money into ad campaigns or candidates coffers through front or “shell” groups, Skaggs said.
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Hall said the upcoming 2010 elections could see unprecedented third party spending on judicial retention elections, especially in Iowa, where social conservatives are attempting to oust three state Supreme Court justices that voted to legalize gay marriage in the state.
The trend mimics the rise of excessive campaign contributions in other areas of electoral politics, raising questions about the upcoming midterm elections, which could set new records in campaign spending, according to recent reports.
“This crisis of confidence in the judiciary is real and growing,” warns former Supreme Court Justice Sandra Day O’Connor in a forward to the report. “Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.”
The report states that American voters share O’Connor’s concerns about the money spent on judicial campaigns and are losing confidence in the courts. Three out of four voters believe campaign spending affects courtroom decisions, and 46 percent of judges agree, according to the report.
Top spenders come from the left and the right, as the escalated spending puts pressure on competing special interests and the judges they help elect. The report identifies a “multi-million dollar duel” between conservative and pro-business groups on the right, labor unions and wealthy plaintiffs on the left.
Hall explained that the “arms race” of special interest spending began in the 1990s as big business targeted individual courts that struck down judgment limits on big rulings over things like asbestos and tobacco. Civil attorneys responded, mainly through the Democratic Party, and the ongoing duel created the “tidal wave” of spending.
The report shows how super-spenders use stealth Political Action Committees or individual donations to defeat unfriendly judges or put a handpicked judge in place.
Consider Blankenship of Massey Energy. Blankenship is known for his tirades against global warming research and dawning an American flag-print outfit in April after an explosion at a Massey mine known for safety violations left dozens of workers dead.
Blankenship is also known as the top individual super-spender for spending $3 million on a campaign to elect West Virginia Supreme Court Justice Brent Benjamin.
Once elected, Justice Benjamin refused to recuse himself, and ruled in a lawsuit filed against Massey Energy by another company, in which Massey stood to pay $50 million in damages. Benjamin ruled in favor of Massey Energy in the 3-2 decision.
The case was appealed to the US Supreme Court, which made a landmark 5-4 decision in Caperton v. Massey June 2009 against Massey Energy and Blankenship. The majority opinion stated that due process and “a serious risk of actual bias” required the recusal of Justice Benjamin.
Caperton v. Massey set an important precedent, but special interests have continued to fight for – and win – the right to use financial muscle to influence judicial elections.
Private interests are using the First Amendment to justify massive spending on political campaigns. In January, the US Supreme Court issued a 5-4 ruling on Citizens United v. Federal Election Commission, striking down a longstanding band on corporate financing of campaigns for federal office after hearing arguments alleging that limits on corporate campaign funding violate free-speech rights.
The report calls for reform of state judicial elections and broader transparency in regards to campaign contributions. The report suggests that stronger recusal guidelines and “judicial performance evaluations” can help keep judges honest despite pressures from their campaign contributors.
Hall told reporters that some states are warming up to the idea of reform, but “deep pocketed” special interests will continue to fight reform and attempt to stack courts in their favor.
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