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.
The threat to our state courts is real — and serious. Thirty-nine states use elections to select some or all of their judges. 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. 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.
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. In 2006, pro-business groups were responsible for more than 90% of all spending by interest groups on television advertising in supreme court campaigns.
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.