Campaign Cash Finds Its Way to the Courtroom

Outside the realm of presidential politics there is a looming — and very serious — threat to our justice system. Despite all the attention focused on money in politics, few Americans know how much campaign cash is pouring into courts of law, and how it threatens to undermine equal justice for all.

December 14, 2011

Published on Reuters.

Attacks on judges who “legislate from the bench” are commonplace in conservative politics, but the current crop of Republican presidential contenders has taken attacking the judiciary to a new level. New frontrunner Newt Gingrich is the most outspoken — promising that if elected, he would impeach judges, abolish judgeships, and ignore court rulings he doesn’t like.

Gingrich’s plans violate basic constitutional norms and would set off a constitutional crisis.  But, ultimately, they ring hollow: however effective in motivating the Republican base, the attacks on the courts are not credible policy proposals.

Outside the realm of presidential politics, however, there is a looming — and very serious — threat to our justice system. Despite all the attention focused on money in politics, few Americans know how much campaign cash is pouring into courts of law, and how it threatens to undermine equal justice for all.

Judges are elected in 39 states, and in recent years, judicial election spending has skyrocketed. In the last decade, spending on state high court elections more than doubled — candidates raised $206.9 million between 2000 and 2009, compared to only $83.3 million in the 1990s.

Now a new report shows that the percentage of outside spending by special interests and political parties nearly doubled in the most recent judicial election cycle, compared with the previous mid-term election. The report — from the Justice at Stake Campaign, Brennan Center for Justice, and National Institute on Money in State Politics — shows that  just 10 “Super Spender” groups accounted for nearly $15 million in total spending in 2009-2010 — almost 40 percent of every dollar spent on high court elections.

All of these numbers threaten a value cherished by most Americans, one that is central to our democracy: fair, impartial and equal justice. Court cases are supposed to be decided by the law, not by who wrote the biggest campaign check to the judge.

These numbers also worry Americans.  In a survey of 1,000 voters, 83 percent said campaign contributions have a “great deal” or “some” influence on a judge’s decisions; 93 percent believe judges should not hear cases involving major financial supporters; and 84 percent believe that all contributions to a judicial candidate should be “quickly disclosed and posted to a web site.”

Voters clearly recognize the risks to fair and impartial courts when judges have to depend on deep-pocketed benefactors to gain a seat on the bench.  And with the influence of outside groups growing in judicial races across the country, these risks will only increase.

Even more alarming is the fact that at the same time a surge in secret spending has transformed high court elections, state courts are facing other, dire threats.

Increased spending by outside groups in the last election cycle was the logical culmination of a decade of efforts to inject partisanship into our courts, and anti-court partisans didn’t stop after Election Day. Throughout the winter and spring, they launched a ferocious round of legislative attacks on reforms designed to protect courts from special interests, including challenges to merit selection systems, assaults on public financing of judicial elections, and an unprecedented number of legislative threats to impeach state judges.

And these attacks came just as the widespread economic crisis has decreased funding for the judiciary in states across the country, putting extraordinary fiscal pressures on courts at precisely the same time foreclosure proceedings and consumer debt cases are swelling caseloads.

State judiciaries are caught in a vise, squeezed on one hand by interest groups waging an unrelenting war to impose partisan political agendas on the bench, and on the other by devastating fiscal pressures.  As the Supreme Court continues to weaken campaign finance laws, and the nation prepares for the most expensive election cycle in history next year, elected judges will only see more pressure from outside groups—increasing public concern that justice is for sale.