Scholarship Spotlight: Big Money in the High Courts
The judicial branch: A bastion of objectivity in a polarized society. An institution insulated from the gales of politics. Judges bound by and faithful to the rule of law and the law alone.
That’s the idea anyway. But as UW Law Professor of Law Hugh Spitzer writes in a recent scholarly paper, a flood of special interest campaign financing is threatening to erode public faith in state supreme court elections across the country.
“There have been periods of time in the United States where the public viewed — and respected — the judiciary as being politically independent,” Spitzer says. “Today, protecting the judiciary and the perception of the judiciary has become more important than it ever has been in recent times.”
Today, protecting the judiciary and the perception of the judiciary has become so important — and so endangered.
Spitzer is a well-known scholar who has written extensively on state constitutional law and supreme courts. In “Amending Codes of Judicial Conduct to Impose Campaign Contribution and Expenditure Limits on Judicial Campaigns,” Spitzer and former Washington Supreme Court Justice Philip A. Talmadge (Talmadge/Fitzpatrick/Tribe) examine the impact of special interest spending in judicial elections over the last decade.
In 2017-18, more money than ever was spent on state supreme court elections in the 37 states where voters play a role in electing judges. To this end, the authors draw on extensive research conducted by political scientists to describe the threats posed by this trend. Finally, they propose solutions to curb special interest group campaign financing, restore public faith in judicial impartiality and safeguard against partisan influence in the election of state supreme court justices.
“Whether or not the individual judges who receive large campaign donations are fully conscious of the resulting impact on their decisions, social scientists have solid evidence that judicial behavior is materially affected by who is contributing — and by how much,” Spitzer and Talmadge write in the paper.
“This suggests that large campaign contributions pose a real danger to an impartial judiciary, and not just a perceived problem.”
PRECEDENT AND PERCEPTION
The precedent for what is happening today can be traced back to a 1976 case Buckley v. Valeo, in which the U.S. Supreme Court struck down limitations on spending by campaigns, individuals and independent groups. In essence, the court did not see these outside contributions as a threat that would likely lead to corruption of the judiciary.
Similar decisions in McCutcheon v. Federal Election Commission and Citizens United v. Federal Election Commission helped pave the way for increased campaign spending nationally, including in judicial contests.
As a result, the landscape today is vastly different than even a decade ago.
“The size and impact of expenditures have increased drastically,” Spitzer says. “Back in 1976, these monster contributions were simply not being made. So, it’s not surprising that the Supreme Court back then didn’t see it as a problem.”
Spitzer isn’t kidding about monster contributions: Campaigns, individuals and special interest groups spent an unprecedented $39.7 million total on 66 individual state supreme court contests in the 2017-18 election cycle, according to a 2019 report by the Brennan Center for Justice.
Of those, 12 races accounted for 75% of the total spending — all in particularly contentious districts across the United States. In some states, special interest groups (including lawyer groups) accounted for up to 84% of total campaign contributions.
Spitzer explores research that shows that whether judges are conscious of it or not, funding sources do in fact influence voting patterns on the bench. This is directly tied to a growing public perception that donations directly influence judicial decision-making.
If the result is an erosion of faith in state courts — which combined hear hundreds of thousands of cases per year — what can be done to fix the system?
Spitzer and Talmadge provide several solutions, two of which are predicated on the power of the courts to regulate themselves. A third calls on states to establish public campaign funding systems for court races.
At their core, however, any changes to campaign finance laws will require a paradigm shift in recognizing outsized special interest spending as a problem — something that has been challenging to do to this point.
That’s not to say it’s impossible or even unlikely, Spitzer says. Judges are human after all, and perspectives change with — or sometimes even ahead of — public opinion.
That, he says, could be the spark needed to start addressing campaign finance reform issues writ large.
“When the law changes and problems arise, the judiciary’s perception of the problem must adjust as well,” Spitzer says. “Judges’ attitudes and approaches will shift along with everyone else in their background, and the judiciary can be an important catalyst — as it was in the Civil Rights Movement nationally or in education funding cases in almost every state.
“But in this instance we’re not talking so much about the courts as change-makers as we are about judges as protectors of our fundamental values. Here, the courts really have to act to protect their own independence, thus protecting our basic political system.”
Take a deeper dive into the impact of big money in state judicial elections in “Amending Codes of Judicial Conduct to Impose Campaign Contribution and Expenditure Limits on Judicial Campaigns,” published in the Virginia Journal of Social Policy and the Law.