Free to Judge: The Power of Campaign Money in Judicial Elections

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In the now infamous Citizens United, 558 U.S. 310 (2010) decision, former Justice Anthony Kennedy declared “The appearance of influence or access…will not cause the electorate to lose faith in this democracy.” Now that the Supreme Court is practically owned by the Federalist Society (and has completely nullified the American Revolution by making the President above the law contrary to any Constitutional textual support), it is perhaps not surprising that the same court entertains such delusions about the influence of money in our political life.

Most folks will never see the inside of a federal courtroom. The more “everyday” types of cases that “we the people” are likely to be involved in—divorces, petty crimes, traffic tickets, neighborhood or local business disputes—are more likely to be heard in state courts. In the U.S., about half of the states elect their judges (so the judges are subject to political-style campaigns). In in the other half, judges are appointed (by the governor, by the legislature, or by a specially appointed commission). Which presents the question whether judges in candidate-style judicial elections are subject to the same biasing influence of campaign contributions as other politicians.

Free to Judge answers this question. Authors Michael Kang and Joanna Shepherd are law professors who have been trained in statistics—a rare combination because a lot of folks choose to go to law school to avoid math. In Free to Judge, Kang and Shepherd utilize multilevel logit models to determine if campaign contributions have any measurable effect on judicial decisions. Those who want to explore the details of multilevel logistic regression can read the article at this link.  While no model of analysis is perfect, Kang and Shepherd provide harder evidence for what most of us can sense intuitively: Money can affect judicial decisions just like it affects political outcomes.

The book starts by telling us about the case of Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).  In 1998, Hugh Caperton sued Massey Coal Co over a contract dispute and a West Virginia court awarded Caperton $50 million in damages. Don Blankenship, a wealthy owner of Massey, knew the case would be appealed to the WV Supreme Court. Blankenship donated $3 million to a candidate running against a Supreme Court incumbent who Blankenship thought would be more favorable to his case. Blankenship’s candidate won the election and then became the deciding vote on the WV Supreme Court that overturned the $50 million verdict against Massey. Although Caperton’s attorneys had requested this judge to recuse himself based on Massey’s donation to his campaign, he refused to do so.

Caperton appealed to the U.S. Supreme Court, where the question presented was whether the judge’s refusal to recuse himself from a case where one of the parties donated $3 million to the judge’s election campaign violated the Due Process Clause of the 14^th Amendment. Although there was no evidence of a quid pro quo, a 5-4 Supreme Court answered in the affirmative and reversed the overturning of the judgment. Moreover, the Court held that it need not find that [the WV judge] was actually biased, only that “under a realistic appraisal of psychological tendencies and human weaknesses,” there was a “risk of actual bias” due to the judge’s “direct, personal, substantial, pecuniary interest” and the judge was required to recuse himself.  In the majority were (former) Justices Stevens, Breyer, Souter, Kennedy and Ginsberg.  The dissenters were Roberts, Scalia, Thomas and Alito. So…it is highly unlikely that the decision would have come out this way with the current Supreme Court.

“Money too frequently manages to buy what it wants from judges and judicial elections. We find a robust and significant connection between campaign finance contributions and elected judges’ decision in favor of the contributors’ preferences over a wide range of cases.  Money generally gets its desired outcomes from the elected judges it supports.”

The authors specifically examine state partisan judicial elections.  States who opted to elect judges believed that this would avoid cronyism and political patronage when judges are appointed by governors and legislators. It was also believed that elections would make judges more accountable to their local communities. Some states have attempted to eliminate the issues created by partisan spending in elections by holding non-partisan judicial elections, or by retention elections (the judge is initially appointed, but voters can decide whether or not the judge can keep his or her job for another term).

Ironically, the “business community” supported merit selection (i.e., appointment and retention), because judicial campaigns (where voters decide) “generally produced more pro-labor, anti-business judges.” The corporate and oligarch money that seeks to purchase its own judges is looking for candidates who share their goal of busting unions, eliminating regulations and permitting obscene concentrations of wealth and power.

However, when oligarchs/plutocracy/corporatocracy want to target a judge for removal, they know that the real reason—allow us to do and take whatever we want and screw the people without recourse—will not be a winning argument. And so they create a pseudo-issue by making the election about crime—a subject which can easily appeal to fear, triggering the amygdala and hijacking higher critical thinking functions of voters’ brains. A pro-people/pro-worker judge is targeted for being “soft on crime” by pointing to a specific case (which we never hear all of the details or even about what the law allows) where the target judge has imposed what appears to be a lenient sentence.

The authors examined data from television advertising in state supreme court elections from 2008 to 2013.  They found that re-election of an incumbent judge was highly dependent on the prevailing crime rate, and criminal law decisions are those most likely to be subject to political “attack ads.” They found that incumbent judges became increasingly more punitive in their rulings as the next election approached: A criminal defendant sentenced right before an election faced a six-month longer sentence than the same defendant convicted of the same crime at the beginning of the judge’s term.  Which suggests that judges were concerned about keeping their jobs, and just the fact that an election was upcoming—absent the effect of campaign contributions—affected judicial decisions.

Until the 1990s, judicial elections were not very competitive. Many voters would leave judicial candidate choices blank (along with other “down-ballot” offices), and often the only voters who were familiar with judicial candidates were the attorneys who appeared before them. However, during the 1990s, judicial campaign spending “skyrocketed” from just over $10 million to nearly $70 million.  The authors suggest this was due to a huge increase in state court caseloads as well as an “upsurge in controversial policy-laden cases” that often ended up in state supreme courts.

The authors argue that campaign financing in judicial elections now “more or less resembles competitive elections for other political offices…spending in most state supreme court races has surpassed spending for state legislative races…As a result, state supreme court justices face many of the same political pressures as elected politicians in other government offices.”  Which means (1) judges have to worry about how voters and politicians will respond to their decisions instead of following the law without fear or favor, and (2) the corporate plutocracy can now buy judges just like they buy congressmen. We are even seeing this on the U.S. Supreme Court, where no election is involved.

Not surprisingly, “business groups” were the biggest donors to judicial candidates, especially at the Supreme Court level.  This share has decreased slightly since the Citizens United decision, with business groups donating 31.3%, behind lawyers and lobbyists at 32.2%. Following Citizens United, business groups channeled more money through outside groups (like super-PACS) rather than directly to individual candidates. Which has the benefit of making it harder to follow the money.

The authors applied their probit regression models to analyze the relationship between campaign contributions and judicial decisions involving business interests. Their models were designed to “control” for other variables that could affect the decision, such as case histories, case participants, “a proxy for political ideology of the justices,” individual temperaments and partisanship of the justices, and institutional factors such as state law and systems of judicial administration in each state. They found a “statistically significant connection” between campaign contributions and judicial decisions: Each $1,000 in contributions from business groups increases the likelihood that a judge would vote in favor of a business litigant by 0.03 percent. “Although this seems like a small difference, it quickly balloons once the amount of money spent in state supreme court races is factored in.” In 2015-2016, spending for 76 state supreme court seats was $69.3 million, amounting to almost $1 million per seat.

The authors’ data showed that campaign contributions from business groups had a greater effect (i.e., more pro-business decisions) for partisan-elected judges than for appointed or retention-only judges. For each 10% increase from business groups as a percentage of total fundraising, overall judicial decisions were 3% more likely to favor business interests. More specifically, decisions were 6% more likely to favor business interests in labor cases, 5% more likely to favor business interests in tort cases, and 4% more likely to favor business interests in contract cases.

The authors next analyzed the influence of money parsed by major party coalitions. In addition to the parties themselves, the authors categorized interest groups as belonging to (or favoring) one of the two major parties. Here they found that campaign contributions in state supreme court election cases are “significantly predictive of justices’ voting on the bench” for both parties. They broke the types of cases down to torts, products liability, medical malpractice, labor/employee, and business-to-business disputes. While both “liberal” and “conservative” money made a difference in all cases, the influence of Republican money was about 7 times greater than the influence of Democratic money.

The next question they asked was about differences between ideology (pro-business versus pro-labor or consumer) versus strict partisanship. For this analysis they looked at election litigation (specifically Bush v Gore), as well as cases dealing with campaign finance itself.   That is, would judges make decisions that favored their partisan candidate rather than based on an ideologically predictable interpretation of the law.

These cases are based on arcane (and usually underdeveloped) hyper-technical questions of law (law which is often underdeveloped due to few precedents), but their resolution often determines who is going to win. In more typical cases, we can usually figure out which decision will be more acceptable to a partisan viewpoint over the long term.  However, in election-related cases, we know who is going to win in the short term, but may have no idea how the ruling will affect political advantage or disadvantage over the long term. Therefore, unlike business cases where we might be able to guess how a particular judge might rule based on the judge’s (or the money that elected the judge) personal legal philosophy and interpretation, could we nonetheless predict what the answer will be based on which party would win?

Here, the authors’ data found that “Republican justices are more likely to favor their own party in election cases by a statistically significant (60%) margin compared to Democratic justices (43%)…Moreover, partisan favoritism by elected Republican justices increases as a function of campaign contributions…We find that every additional $10,000 in contributions from the Republican side increased” the likelihood of a favorable vote by 3%.

The authors then examine the effects of selection versus biasing. “For technical reasons we explain later, it’s difficult to prove that biasing happens at all.”  That is how can you parse biasing (the campaign contribution affected the decision) versus “selection.”  That is, big money donors seek out judicial candidates who share their political philosophies, and these are the candidates who receive big donations. One argument is that if selection (rather than bias) is what is taking place, then money is not changing judicial decisions at all.

Using “the best social-science evidence to date,” the authors found a significant biasing effect from campaign contributions.  They cite a study of North Carolina Supreme Court candidates before and after the state adopted public financing for judicial races.  The NC study found that once justices opted into public financing, they became less favorable toward their donors. While this study suggests that biasing occurs, it was limited to six justices in one state. The fact that biasing can occur does not mean that selection effects do not occur. Rather, selection allows big money interests to determine who becomes a viable judicial candidate, while biasing affects particular judicial decisions. In either case, the people (and the law) are the losers.

The authors then look at incumbents running for re-election versus “lame duck” judges (they are either term limited or have announced their retirement). Here they looked at decisions of over 650 state supreme court justices from 2010 to 2012. Again, the focus was on decisions in business cases and contributions from business groups, and the comparison was between incumbents running for re-election and judges finishing their final term (so-called lame ducks).  Business cases were selected because “Business groups typically have a focused agenda and clearer preferences than other interest groups,” compared to other legal and political issues where the dichotomous line is not so clear.

Although the results were not statistically significant, decisions favoring businesses were 55% in the incumbent group, but only 52% in the lame duck group.  However, the interesting thing is that, while campaign contributions have a “weaker effect” on lame duck judges facing mandatory retirement (or term limit), the influence of campaign contributions is actually stronger when judges are in their last term for any other reason. The authors suggest that, as long as “the possibility of re-election remains on the table,” money will still have an influence. The authors go into the detail of their methodology.

In the final chapter, the authors propose suggestions for reform. Their data suggest that it is not elections per se that result in campaign financed bias, but concerns about re-election. That is, the bias is prospective (what will you do for me in the future) rather than retrospective (gratitude for favors in the past).

Eliminating judicial elections altogether and moving to an appointment system (like the federal system) may at first seem like a solution to the problem of judicial campaign finance bias. Free from having to run for office, campaign and raise money, judges would be “free to judge” according to the law. However, the authors suggest that abolishing judicial elections is not likely to happen, as it has “been the dominant method for selecting state judges in the United States since the nineteenth century; and no state has dropped judicial elections in more than forty years.” Judicial elections are popular, and a “supermajority” of Americans prefer electing their judges because it gives “regular voters” the power of choice.

The authors also suggest that judicial appointments are not immune from political influence (as we can observe ourselves during any US Supreme Court nomination hearings). “The federal appointment and confirmation process is, in its own way, just as politicized as state judicial elections…Given the magnitude of each U.S. Supreme Court appointment, it is no surprise that big money politics and campaigning now invades the federal confirmation process.”

Justice Roberts was one of the dissents in Caperton, and he predicted that the courts would be inundated with Caperton motions, because large campaign contributions have become the rule rather than the exception. Ironically, Caperton has had little to no effect on judicial elections (based on a recent decade-long study). Only 21 cases have appeared since with Caperton-based recusal claims. Only a handful of states have meaningfully revised their recusal rules.  “…Caperton simply acknowledges the reality that our research substantiates: Campaign spending is extremely high and politicizing, which has resulted in measurable judicial bias, conscious or subconscious, in favor of campaign contributors’ interests.”

So, the authors conclude by recommending that judges can continue to be elected by voters in partisan elections, but be limited to a single term.  A review of “average” judicial terms in office found variation between six years on the “low end” and fourteen years on the “high end.”  They also argue that—if a judge is going to make the sacrifice of a campaign, he or she should be allowed to develop some tenure in office. Their recommendation is a single term that is closer to an “average” of two terms, which they suggest should be about 14 years. This will both attract “higher quality” candidates as well as allow judges to grow into the job (and their decisions would become more predictable as they developed their own theories of legal analysis).  The authors believe that by eliminating the necessity of re-election, Judges won’t have the biasing pressure of financing a campaign in order to keep their job.

After reading this book, many of us (myself included) will say, “why am I not surprised, nothing new here.” Yet, Kang and Shepherd have done us a favor by quantifying with hard data a phenomenon that all of us know anecdotally to be true. Indeed, the forces of oligarchy/plutocracy/corporatocracy that buy their own congresspersons and judges perennially make the same arguments in the venues that matter (i.e., Congress and the Courts); that clamping down on campaign donations infringes on “freedom of speech,” and the harm caused by the influence of money is minimal. Yet, it is this very disconnection from reality that rule by the rich has created.

Studies about corruption and bias focus on the effect of a single donation on an individual judge (or congressperson). More insidious is the corrosive effect that creates an overall “wealth bias” in the system as a whole. Money talks and money gets heard. Those in positions of power who make decisions that affect everyone view their cases, laws, and philosophies through the lens of their wealthy donors, irrespective of (and on top of) any particular decision that might look more like quid pro quo. Indeed, our political, economic and judicial systems in the US are working quite well for a small well-off and privileged segment of society. Most of the rest of us are working harder for less, and many have given up on a system where their voices are never heard.

“The problem of campaign money in judicial elections is a pervasive and growing threat to equal justice. We’ve shown here that campaign money as an influence on judges’ decision making is not just over-blown hype. Of course, there’s a lot of attention to the rising spending on judicial campaigning, the increasing politicization of the judicial election process, and how hyper-partisanship in American politics is creeping into how we select our state judges. However, we’ve documented empirically, both in our own work and that of other scholars, that campaign money does bias judges and how they decide cases. Campaign money sways judges to decide cases in favor of their financial donors, and the problem is growing as donors spend more and more money on judicial elections. Judges and the public are right to suspect, as they do, that money buys favorable outcomes in our current system of judicial elections. We’ve shown that the connection between campaign money and judicial decisions is not just a coincidence.”