Buying Justice: The Impact of Citizens United on Judicial Elections
The Impact of Citizens United on Judicial Elections
In Citizens United v. FEC, the United States Supreme Court struck down the long-standing federal ban on corporate independent expenditures in elections.[ii] The transformational effect that unrestricted corporate and union spending will have on elections for legislative and executive offices has been widely denounced.[iii] But the most severe impact of Citizens United may be felt in state judicial elections.
Just last year, the Supreme Court ordered a West Virginia judge disqualified from hearing the case of a campaign supporter who had spent extravagantly to elect the judge. It did so after concluding that, by refusing to step aside from hearing his benefactor’s case, the judge had violated the opposing party’s constitutional right to a fair hearing before an impartial court.[iv] Yet, by opening the door to expanded corporate spending in judicial races, Citizens United is likely to make this type of conflict of interest more common, and to increase pressures on judges who seek to remain independent and impartial.
Equally important, heightened spending in judicial races will almost certainly exacerbate existing public concerns that justice is for sale to the highest bidder. As Justice John Paul Stevens noted in dissent, the Citizens United decision came at a time “when concerns about the conduct of judicial elections have reached a fever pitch.”[v] And after Citizens United, if retired Justice Sandra Day O’Connor’s predictions are correct, “the problem of campaign contributions in judicial elections might get considerably worse and quite soon.”[vi]
This paper examines the damage that runaway spending in judicial elections is having on our state judiciaries, and offers several policy recommendations that states should consider in responding to the threat that outsized campaign spending poses to fair and independent courts. It first summarizes recent trends in judicial election spending and documents the impact that escalating spending is having on public confidence in the courts. Next, the paper highlights seven states in which Citizens United’s impact on judicial campaigns is likely to be significant, and explains why the decision is likely to spur increased special interest spending in judicial elections. The paper concludes with proposals for responding to our increasingly expensive judicial elections: public financing for judicial campaigns; enhanced disclosure and disqualification rules; and replacing judicial elections with merit selection systems in which bipartisan committees nominate the most qualified applicants, governors appoint judges from the nominees, and voters choose whether to retain the judges at the ballot box.
Retired Justice Sandra Day O’Connor recently explained the risks that unlimited campaign spending poses to fair and independent courts — and the likelihood that Citizens United will intensify these risks:
If you’re a litigant appearing before a judge, it makes sense to invest in that judge’s campaign. No states can possibly benefit from having that much money injected into a political judicial campaign. The appearance of bias is high, and it destroys any credibility in the courts.
[After Citizens United], we can anticipate labor unions’ trial lawyers might have the means to win one kind of an election, and that a tobacco company or other corporation might win in another election. If both sides open up their spending, mutually assured destruction is probably the most likely outcome. It would end both judicial impartiality and public perception of impartiality.[vii]
The threat to our state courts is real — and serious. Thirty-nine states use elections to select some or all of their judges.[viii] According to the National Center on State Courts, nearly 9 in 10 — fully 87% — of all state judges run in elections, either to gain a seat on the bench in the first place, or to keep the seat once there.[ix] In a 2001 poll of state and local judges, more than 90% of all elected judges nationwide said they are under pressure to raise money in election years, and almost every elected judge on a state high court — 97% — said they were under a “great deal” or at least some pressure to raise money in the years they faced election.[x]
Corporations and special interests are already major spenders in judicial campaigns. As repeat players in high-stakes litigation, these groups have strong incentives to support judges they believe are likely to favor their interests. This is particularly true on state high courts, where electing a majority or a crucial swing vote can make the difference in litigation involving multi-million dollar claims. As a result, business interests and lawyers account for nearly two-thirds of all contributions to state supreme court candidates. Pro-business groups have a distinct advantage: in 2005-2006, for example, they were responsible for 44% of all contributions to supreme court candidates, compared with 21% for lawyers.[xi] In 2006, pro-business groups were responsible for more than 90% of all spending by interest groups on television advertising in supreme court campaigns.[xii]
This special interest spending has occurred in judicial elections despite the fact that approximately half the states previously banned or sharply restricted corporations from using treasury funds for campaign advocacy. None of these restrictions is permissible after Citizens United. The inevitable result will be increased corporate spending in judicial elections — and increased threats to independent and impartial courts.
As Counsel in the Brennan Center’s Democracy Program, Adam Skaggs works on a range of judicial independence, voting rights, and election administration issues. Before joining the Brennan Center, he was a litigation associate at Paul, Weiss, Rifkind, Wharton & Garrison LLP. In 2003, Mr. Skaggs graduated summa cum laude with a J.D. from Brooklyn Law School, where he was a member of the Brooklyn Law Review. He subsequently clerked for Judge Stanley Marcus of the U.S. Court of Appeals for the Eleventh Circuit and Judge Edward Korman, Chief Judge of the U.S. District Court for the Eastern District of New York. Mr. Skaggs received an M.S. in Urban Affairs from Hunter College of the City University of New York, and holds a B.A., awarded with distinction, from Swarthmore College.
 130 S.Ct. 876 (2010).
[ii] Citizens United allows corporations and unions to make unlimited independent expenditures and electioneering communications in federal and state elections, including state judicial elections. The federal ban on direct contributions from corporations and unions to candidates’ campaigns remains in effect after Citizens United. Also, disclosure of independent expenditures and electioneering communications was upheld by Citizens United.
[iii] See, e.g., Editorial, Court's campaign ruling threatens the public interest, USA Today, Jan. 22, 2010; Erwin Chemerinsky, Op-Ed., Conservatives embrace judicial activism in campaign finance ruling, L.A. Times, Jan. 22, 2010, Lobbyists Get Potent Weapon in Campaign Ruling, N.Y. Times, Jan. 21, 2010; Bob Edgar, Op-Ed., Supreme Court’s campaign ruling: a bad day for democracy, Christian Sci. Monitor, Jan. 22, 2010.
[iv] See Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009).
[v] Citizens United, 130 S.Ct. at 968 (Stevens, J., dissenting).
[vi] Adam Liptak, Former Justice O’Connor Sees Ill in Election Finance Ruling, N.Y. Times, Jan. 27, 2010.
[xii] Id. at 7.