Article Critique

[*40] AS THE AMOUNT OF MONEY SPENT IN CONTESTED judicial elections has increased steadily in recent years, n1 Americans across the political spectrum have grown concerned that extraordinary campaign spending threatens fair and impartial courts. Retired U.S. Supreme Court Justice Sandra Day O'Connor, who has emerged as a tireless, outspoken champion of reforming judicial selection, has articulated the public's distress about money on the judicial campaign trail. According to O'Connor, as the amount of spending in judicial elections has mushroomed, "[t]he public is growing increasingly skeptical of elected judges," whom they are beginning to feel are "just politicians in robes." n2 O'Connor argues that when judges preside over the cases of their campaign supporters, it threatens to "end both judicial impartiality and the public perception of impartiality," and has the potential to "destroy[] any credibility in the courts." n3

If these dire predictions are more than mere hyperbole, campaign spending poses serious threats to our state courts -- especially in Texas, one of only four states in which all trial and appellate judges run in contested, partisan elections both initially and for subsequent terms. n4 To assess O'Connor's striking indictment of judicial elections, this article documents the rising price-tags associated with judicial campaigns, both in Texas and across the country. It then examines evidence of the impact that extravagant campaign spending has had on judicial impartiality -- and the perception of impartiality. Finally, it concludes by offering policy proposals for responding to the issues posed by heightened campaign spending in judicial elections.

The Explosion in Campaign Spending

Across the country, the amount of money involved in state judicial campaigns has skyrocketed in recent years. Over the last decade, in more than 20 states with competitive judicial elections, candidates running for state high courts raised about $ 206 million -- more than double the $ 83.3 million raised between 1990 and 1999. n5 Tens of millions more dollars have been spent on independent TV advertisement campaigns by special interest groups and political parties hoping to influence judicial races. n6 These groups paid for about 42 percent of the estimated $ 93.6 million spent on TV air time from 2000-2009, and in 2008, special interests and political parties spent more than half of all dollars spent on TV air time -- and paid for 87% of all negative ads. n7

Unlike various states that have only in the last ten years experienced heightened spending, negative attack ads, and special interest activism in judicial elections, in Texas, the phenomenon was well established by 2000. Such campaigning arrived in Texas in the 1980s, when the insurance lobby and medical industry fought to re-shape a Supreme Court that was perceived as dominated by plaintiffs' lawyers. n8 Their efforts culminated in 1988 with a campaign dubbed "Clean Slate '88," in which allied candidates took five of six open seats. n9

By the mid-1980s, concerns about judicial electioneering in Texas prompted then-Chief Justice John Hill to form the "Committee of 100" to examine judicial selection and judicial campaign financing, and in 1987, Hill became the first sitting chief justice to propose that Texas abandon contested elections and move toward an appointive system. n10 Hill's calls for reform did not carry the day, however, and the tactics employed by the interest groups that transformed the plaintiff-friendly court of the 1980s into the entirely Republican bench that exists today have continued to the present.

High-cost Supreme Court races are the now clear norm in Texas, because, as has been true for the last 25 years, "[i]t costs money -- a lot of it -- to run for statewide . . . offices in Texas." n11 From 2000 to 2009, candidates for seats on the Supreme Court of Texas raised about $ 19.2 million, ranking Texas fifth nationally for overall candidate fundraising. n12 When spending on TV ads by independent groups is added to dollars raised by candidates themselves, Texas rises to fourth place in the nation; only Alabama, Ohio, and Pennsylvania saw overall spending figures higher than those seen in Texas in the last ten years. n13

With spending totals as high as they are in Texas judicial races, any candidate with a realistic chance of winning judicial office -- particularly a statewide judicial office -- must be able [*41] to amass a significant campaign warchest. To do so requires judicial candidates to identify those individuals and groups able and willing to cut sizable campaign checks. There are limited places candidates can go to raise these campaign funds, because "[f]ew people other than lawyers, potential litigants, and a few special interest groups with strong legal interests are concerned enough with a judicial election to contribute money." n14 Thus, judicial candidates must turn to repeat players in high-stakes litigation if they hope to raise adequate funds to support competitive campaigns.

Players with pockets sufficiently deep to regularly underwrite judicial campaigns include corporate law firms and special interest groups with ties to major industries. An analysis of campaign contributions records by the Texas Tribune concluded that the law firms of Vinson & Elkins, Fulbright & Jaworski, and Haynes & Boone are among the top donors to Texas judicial candidates. n15 Lynne Liberato, a partner at Haynes & Boone who oversees the firm's political action committee, explained the outsized role these firms have in funding judicial races: "Elections require finances, and the main entities that are going to be interested, and understand the importance of the elections, are going to be lawyers." n16

Another major player in Texas Judicial Elections is home builder Bob Perry, the largest contributor to the 527 group Swift Boat Vetarans for Truth, which played a pivotal role in the 2004 presidential election. Perry is the primary contributor to two PACs that ranked second and seventh in contributions to candidates for the Texas Supreme Court over the last decade. n17 These two PACs, Texans for Lawsuit Reform and HillCo PAC, accounted for more than $ 400,000 in candidate contributions between 2000 and 2009; one or both were top 5 donors to five of six justices elected in 2006 and 2008. n18

Growing Concerns Over the Impact of Campaign Cash on Judicial Decisions

The fact that judicial candidates in Texas "can be extremely dependent on contributions from a very small number of people" n19 has led numerous observers to question whether these contributors gain an unfair advantage over non-contributors when they appear before the judges they have supported. No studies have definitively proved a causal link between campaign contributions and favorable judicial outcomes, but the belief that a correlation exists has given rise to a public perception that justice is for sale.

Several studies have attempted to demonstrate that campaign contributors fare better before elected judges than do non-contributors. A recent study of the Texas Supreme Court, for example, found that the more money a petitioner contributed to the justices, the more likely it was that the court would accept a petition for review. n20 The court was 7.5 times more likely to accept petitions filed by contributors of at least $ 100,000 than petitions filed by non-contributors, and 10 times more likely to accept petitions filed by contributors of more than $ 250,000 than petitions filed by non-contributors. n21 Although contributors filed only 40% of the petitions for review, they accounted for 70 percent of the petitions accepted. n22 And though only six percent of petitions filed by non-contributing attorneys were granted, 56 percent of petitions filed by legal counsel who donated in excess of $ 250,000 were accepted. n23

Studies of elected judges outside Texas have also suggested a relationship between contributions to judges and favorable outcomes. A forthcoming N.Y.U. Law Review study of state court decisions in all fifty states by two researchers at the Emory University School of Law, for example, finds 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 a statistically significant increase in the probability that the judges will vote for business litigants." n24 A 2006 study of the Ohio Supreme Court by the New York Times found that, on average, the Ohio justices voted in favor of their campaign contributors 70 percent of the time -- and that one justice voted for his contributors more than 9 times out of 10. n25 And a controversial study of the Louisiana Supreme Court in the Tulane Law Review concluded that judicial decisions were made "on the basis of the size and timing of a political donation" and suggested that the "higher the donation, the higher the odds that the contributor's position will prevail." n26

None of these studies proves that campaign contributions are a direct cause of positive judicial outcomes, but they [*42] do paint a troubling picture. And the correlation between contributions and favorable decisions that these studies have documented produces a perception that campaign contributors have an unfair advantage in the courtroom. Thus, state and national polling has proved beyond question that the public -- including members of the business community and bar -- believe that campaign contributions influence judges' decisions.

A study conducted in 1998 by the Texas State Bar and Texas Supreme Court, for example, found that 83 percent of Texans believed judicial decisions were "very" or "fairly" significantly influenced by campaign contributions. n27 These findings are entirely consistent with numerous national and state surveys which have all confirmed that three in four Americans believe that spending by special interests and repeat players in litigation sways judicial decision making once successful candidates take their seats on the bench. n28

Concerns about the leverage that campaign contributions exercise over the judges presiding over cases are spread equally among all stakeholders in our justice system. In the Texas survey cited above, 79 percent of lawyers reported that they believed campaign contributions had a significant influence on judges' decisions. n29 A 2007 Zogby poll found that 79 percent of business leaders believe campaign contributions made to judges have at least some influence on their decisions in the courtroom -- and that 90% are concerned that campaign contributions and political pressure will make judges accountable to politicians and special interest groups instead of the law and the Constitution. n30

Perhaps most significantly, state judges themselves are concerned about money's influence on the bench. A 2002 survey of more than 2,400 state judges by Greenberg Quinlan Rosner Research reported that 46 percent of respondents believed that judges' decisions were influenced by campaign contributions. n31 More than 55 percent of state court judges believed that "judges should be prohibited from presiding over and ruling in cases when one of the sides has given money to their campaign." n32 Similarly, in a 2004 survey in New York State, approximately 60% of state judges reported believing that campaign contributions raise reasonable questions about judges' impartiality. n33

It is crucial to note that concerns about cash in the courtroom transcend partisan divisions -- fair and impartial courts are not a Democratic or Republican issue. A national survey by Harris Interactive, conducted in June, 2010, confirmed that fears about justice being for sale are held equally across the political spectrum. Among the survey's findings:

71 percent of Democrats, and 70 percent of Republicans, believe campaign expenditures have a significant impact on courtroom decisions. All told, 71 percent of voters share this assessment; only 23 percent believe campaign expenditures have little or no influence on elected judges.

82 percent of Republicans, and 79 percent of Democrats, say a judge should not hear cases involving a campaign supporter who spent $ 10,000 toward his or her election. . . . [O]nly 8 percent of the American public believes an elected judge should stay on cases involving major campaign backers. n34

Republicans and Democrats in Texas share the concerns articulated by their counterparts nationally. Thomas R. Phillips, the retired Republican Chief Justice of the Supreme Court of Texas, has said that Texas's "partisan, high-dollar judicial selection system has diminished public confidence in our courts, damaged our reputation throughout the country and around the world, and discouraged able lawyers from pursuing a judicial career." n35 Phillips reported that his "biggest regret is that we are still using the partisan contested high dollar method of choosing judges." n36 Democratic Texas Senator Rodney Ellis echoed Phillips' concerns when he noted that, because judges raise campaign funds from the lawyers and parties who appear before them, it "creates a perception of justice being for sale." n37

Sitting Chief Justice Wallace B. Jefferson has succinctly summarized concerns about the impact that high-dollar judicial campaigns have on an independent judiciary: Because "we have now become accustomed to judicial races in which the primary determinants of victory are not the flaws of the incumbent or qualities of the challenger, but political affiliation and money," Chief Justice Jefferson concluded, "[t]he status quo is broken." n38

Addressing Perceptions of Cash-Register Justice

Assuming that Chief Justice Jefferson is correct that the status quo in Texas -- contested, partisan elections with extremely high price tags -- isn't working, policy changes are in order. Below are three possible solutions to the problems inherent in the current system.

1. Replacing Contested Elections with Appointment and Retention Elections. Like Justice O'Connor, retired Chief Justice Thomas Phillips has advocated replacing Texas's partisan, contested [*43] elections with a system in which, when a judicial vacancy occurs for any reason, the governor would appoint a successor; the successor would be subject to senate confirmation; and then, at the end of the term, the judge would sit for an unopposed retention election. n39 Chief Justice Phillips suggests that moving to a system of initial appointments and retention elections "would preserve most of the good of electing judges while alleviating most of the bad," because retention elections would be non-partisan, and would minimize the need for judges to "amass million-dollar war chests and hire image consultants" to be competitive. n40

Though a system of appointment and retention elections may have much to recommend it, previous proposals to implement such a system in Texas have not succeeded, and the public may be reluctant to vote for the constitutional amendment necessary to move away from contested elections -- which opponents will inevitably attack as taking away Texans' right to vote. If there will ever be a time when the public could be mobilized to move away from money-drenched partisan elections, however, it may be now, "when concerns about the conduct of judicial elections have reached a fever pitch." n41 Still, replacing contested elections is not an easy political sell. In November, citizens in Nevada voted down a ballot initiative that would have swapped that state's contested judicial elections for a retention system, and Nevada may be a bellwether for the prospects of appointment and retention systems in other states.

2. Adopting Public Financing for Judicial Campaigns. While abandoning contested, partisan elections entirely would eliminate many of the problems associated with outsized campaign spending, doing so is not a necessary precondition to reducing the influence of campaign cash on elected judges. Texas could address many of the concerns associated with judicial campaign cash, while retaining contested elections, by adopting public financing.

In 2002, North Carolina became the first state to enact a voluntary public financing system for judicial elections, and its system has proven successful over the last several election cycles. n42 Since then, public financing has been enacted in New Mexico, n43 Wisconsin, n44 and West Virginia, which will run a pilot program of publicly financed supreme court races in 2012. n45 Texas would be well served to follow the lead of these sister states, because judicial public financing eliminates the need for candidates to dial for dollars, and removes the potential for the conflicts of interest that can arise when judges solicit campaign cash from the parties and lawyers who appear before them.

3. Codifying Robust Disclosure and Recusal Rules. Whether Texas retains contested elections -- ideally with public financing -- or moves to an appointment-and-retention system, one key to ensuring public confidence in the judiciary is strengthening rules for disclosure of campaign contributions and judicial disqualification. In particular, Texas should require judges and litigants, at the outset of litigation, to disclose all facts involving campaign statements and campaign spending that could affect a judge's impartiality in a particular case. Litigants should be required to disclose not just direct contributions to judges, but also independent campaign expenditures in judicial races, because "some expenditures may be functionally equivalent to contributions in the way they influence the outcome of a race, the way they are interpreted by the candidates and the public, and the way they taint the decisions that the [judge] thereafter takes." n46

In cases where a judge has received campaign support from a litigant that is sufficient to give rise to reasonable questions about the judge's impartiality -- either in the form of direct contributions or independent spending -- the judge should be disqualified from hearing the case. Just as public financing minimizes the effects of private money on the campaign trail, strict disclosure and disqualification rules address money in the courtroom once successful judicial candidates take their seats on the bench. By adopting disclosure and disqualification standards that deal specifically with campaign spending, Texas can ensure that judges do not preside over the cases of their biggest campaign supporters, thus significantly reducing concerns that campaign cash can tilt the scales of justice.

Even if campaign contributions do not actually influence the decisions judges make, the widespread perception of influence-buying is corrosive to the legitimacy of an institution whose authority depends not on the power of the sword or the purse, but on its reputation for dispensing equal justice to all. With widespread agreement among Texans across the political spectrum that the current system of money-drenched judicial elections is far from an ideal way to deliver courts that are -- and appear to be -- above the influence of politics and wealthy funders, the time has come to reform judicial selection in Texas.

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Civil ProcedureJudicial OfficersJudgesGeneral OverviewGovernmentsCourtsJudgesGovernmentsFederal GovernmentElections

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