by Kevin Elliker

On March 29, 2012, the William & Mary Election Law Society and Election Law Program held a symposium entitled, “More Money, More Problems: Money in Judicial Elections” in Williamsburg, Virginia. The afternoon symposium featured two panels of distinguished speakers moderated by SCOTUSblog reporter Lyle Denniston.

The first panel focused on the financial issues surrounding judicial elections, specifically whether campaign contributions work differently in judicial elections than in legislative elections and if campaign donations result in some form of civic harm even when they do not reach the level of outright bribery. The panelists included: James Bopp, election mega-lawyer and litigator of Citizens United; Justice Thomas R. Phillips, former Chief Justice of the Supreme Court of Texas; and former Federal Elections Commission Chairman Bradley Smith, who currently serves as Josiah H. Blackmore/Shirley M. Nault Professor of Law at Capital University Law School and Chairman of the Center for Competitive Politics, an organization he founded.

When asked whether campaign contributions in judicial elections are fundamentally different from those in legislative elections, the panel rejected the notion that campaign contributions corrupt judges. “One unsung necessity for a judge is you have to be heartless, in a way,” Justice Phillips said, explaining that judges must be immune from coercion, willing to set aside the bonds that sway influence. Such bonds are not only limited to money, he explained, pointing out that people can be influenced when they went to the same college as a contributor, attend church together, have children who know each other, and so on. Judges who can’t do this are “in the wrong business.”

Mr. Smith concurred with this by discussing a study reported by Adam Liptak in 2006, which suggested that contributors successfully influenced elected judges to rule in their favor. In addition to taking “a sad view of life,” Smith pointed to several errors in the study, and posited that the real rate at which judges returned outcomes favorable to their supporters was closer to 55%.  If judges only vote with their constituents fifty-five percent of the time, “the voters are doing a bad job selecting a judge that they agree with,” Smith quipped. In the same vein, Mr. Bopp explained that the strategy of finding a judicial candidate willing to be bought regardless of whether they agreed with the contributor “cannot be dumber.” Not only are these individuals few and far between, but in such a “silent auction, you’re likely to be outbid.” Bopp explained that a correlation doesn’t demonstrate causation, but rather that people are successful in selecting judges with whom they agree. This, according to Bopp, shows the system is getting better, not more corrupt.

Mr. Bopp pointed out that judicial candidates, like legislative ones, seek an important public position through selection by citizens, and therefore financial questions should address how candidates can freely spend to inform the electorate. He contended that the harsh spending limits seen in the federal system force people to give a set amount to a candidate and then donate their remaining money to a third party group. In short, Bopp believes not enough money is spent right now in the political system to ensure an informed electorate.

To an extent, Justice Phillips agreed with the problems posed by limiting candidate spending. Since judges don’t run on platforms like legislators do, erroneous perceptions can mar the reputation of a judge or court.  Therefore judicial candidates ought to make their primary goal one of educating the electorate. Judges need enough money to compete with the outside noise and communicate a message that can convince the people that, “you’re worth of their confidence.

Justice Phillips also explained that the fundamental difference in the job of being a judge, compared to a politician, is the limitation on judicial discretion in most courtrooms: “Ninety-nine percent of the time, you have a statute. You can’t just go and vote your own way, you’re bound in some respect.” Mr. Bopp agreed that this philosophy was the ideal, but declined to accept that it was the norm. He pointed to judges whose philosophy reflect the notion of the “Living Constitution,” and argued this view imports inappropriate discretion over the law. Given this possibility, as well as the power of judges in forty-nine states to shape common law, Bopp argued that that such dangers support judicial elections, since the people deserve to know the judicial philosophy of those who sit on the bench.

Mr. Smith pointed out that this discussion goes to the wisdom of electing judges rather than the role of money in those campaigns, though, “presumably with greater spending, we’d know more and more about the candidates.” He explained that when little attention is paid to a judicial election, very little money is spent. Smith suggested, “If we’re going to elect judges, they need to run campaigns, say what they believe, criticize their opponent, and they need money to do that.”

Mr. Bopp would certainly agree with that proposition, since he sees elections as a way to reduce judicial activism.  Justice Phillips seemed less certain about a solution. While having more money would allow a candidate to better inform the electorate, his view of judicial fidelity to the law suggests that judicial candidates have little room for a platform through which they can win over voters. Bopp sees it a different way: “People understand the difficulty of being a judge that isn’t popular, but they appreciate the role.”

Justice Phillips elucidated a key fact that explained how it could be possible that judges can be elected without the expectation of giving favors back to their contributors. According to Phillips, “most judges running are trial judges, and most of their support comes from lawyers.” These lawyers, often from both sides of the aisle (both plaintiff’s and defendant’s attorneys, not Republicans and Democrats), support candidates who will deliver consistent rulings, rather than ones that will be swayed by campaign contributions. Lawyers want to be able to accurately advise their clients, and inconsistent judges make that nearly impossible. Such a focus on consistency would jibe well with Bopp’s beliefs, so long as the judges were consistently restrained in their judgments.  Mr. Smith’s closing comments captured the underlying issue in judicial elections when he explained, “the question is whether voters quite grasp the package they are voting for or rather for one hot-button issue.”

To this blogger, the panel discussion suggested that the potential for civic harm, short of that caused by outright bribery, could arise from confusion on the part of the electorate that a judicial election is not substantially different from a legislative election. Mr. Bopp made clear that citizens could tell the difference between the two, but Justice Phillip’s hesitations about judges running all-out campaigns reflected the complexity of this issue.

Kevin Elliker is a first-year law student at William & Mary.



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