Nosiest, Nastiest, Costliest?

Is it a constitutional problem if a judge presides over the case of a corporate CEO who spent three million dollars to elect the judge in question? The Supreme Court faced just this question last term...Now, less than a year later, the Supreme Court is poised to open the floodgates to a volume of corporate spending in judicial elections that could make three million dollars look like a drop in the bucket.

January 19, 2010

Is it a constitutional problem if a judge presides over the case of a corporate CEO who spent three million dollars to elect the judge in question? The Supreme Court faced just this question last term. And the Court decided that, in light of the debt of gratitude the judge might feel under the circumstances, yes, allowing him to preside over a case involving a three million dollar donor would violate the other party’s constitutional right to fair and impartial justice.

Now, less than a year later, the Supreme Court is poised to open the floodgates to a volume of corporate spending in judicial elections that could make three million dollars look like a drop in the bucket.

According to legal observers, the Court appears poised to strike down long-standing restrictions on the use of corporate treasury funds in political campaigns. The case at issue, Citizens United vs. Federal Election Commission, could be decided as early as tomorrow. If predictions about Citizens United are accurate, our election system will change dramatically and the voices of average voters could be drowned by a tidal wave of advertisements paid for with billions in corporate cash.

Unrestricted corporate spending in elections for political offices could have a transformational impact in these races. But the most significant damage may be felt in our nation’s state courts, where corporate spending could wreck havoc.

Thirty-nine states rely on judicial elections for some or all of their appellate and trial courts, and a majority of the country’s approximately 10,000 judges run in elections – either to gain a seat on the bench in the first place, or to keep the seat once there. Over the last decade, special interest groups have increasingly pumped money into these elections. Candidates in state supreme court races raised $200.7 million from 1999-2008, more than double the $85.4 million raised in the previous decade. All but two of the 21 states with contestable high court elections set fund-raising records between 1999 and 2008. In 2008, judicial races saw more than $19 million spent on television advertising alone, and last year, candidates set new records for individual fund-raising in two of the three states that held high court elections.

As state judicial races have gotten pricier, they’ve gone more negative, and outside special interests have run some of the ugliest attack ads. Formerly quiet, civil contests for judicial positions have become, in the words of Georgetown Professor Roy Schotland, “noisier, nastier, and costlier.”

If the Supreme Court opens the door to unlimited corporate spending, we can expect these trends to increase exponentially. Corporations, unions and other special interests believe that the most efficient way to buy influence is to control the bench; as an Ohio union official put it in 1990, “We figured out a long time ago that it’s easier to elect seven judges than to elect 132 legislators.” And when groups with opposing agendas are busy spending money in court races, even a corporation that resists investing treasury funds in judicial elections is likely to conclude it can’t afford not to be a player.

Increased special interest spending in judicial campaigns threatens real damage to the integrity of the courts. The public already has serious concerns about the possibility that judges may favor campaign supporters. A USA Today/Gallup Poll in February 2009 found that 89% of those surveyed believed the influence of campaign contributions on judges’ rulings is a problem. Public opinion surveys conducted between 2001 and 2004 confirmed that more than 70 percent of Americans believe that judges’ decisions are influenced by campaign contributions. This public perception that justice is for sale corrodes the ability of state courts to carry out their essential mission, serving as the ultimate guarantors of equal justice in our constitutional democracy.

To ensure that our court system remains what Chief Justice Rehnquist once called the “crown jewel” of our American experiment, we must ensure that our courts remain accountable to the law and the constitution, not to whatever party has the deepest pockets or can cut the biggest checks.

Justice John Paul Stevens famously wrote in Bush v. Gore that while some might question who the “real” winner of the 2000 presidential election was, the identity of the loser was perfectly clear: “the Nation’s confidence in the judge as an impartial guardian of the rule of law.” If the Supreme Court opens the floodgate to unprecedented corporate spending in judicial elections, one of the many losers in Citizens United may be the same.