Judicial campaigns and elections

  • April 18, 2011

    In light of increasingly “ugly” and “expensive” judicial elections such as the recent Wisconsin Supreme Court justice race, states should be permitted to impose more limits on judicial campaign spending than they do on other types elections, write University of California, Irvine law school dean Erwin Chemerinsky and Hofstra law professor James J. Sample in The New York Times.

    “More than 7 in 10 Americans believe campaign cash influences judicial decisions. Nearly half of state court judges agree. Never before has there been so much cash in the courts,” the op-ed explains.

    Chemerinsky and Sample urge advocates for abolishing judicial elections to “come to terms” with the reality that “judicial elections are here to stay,” and instead focus their energy on “incremental changes” that will reduce the influence of money on judges. (A New York Times editorial published last week urged the use of a merit panel rather than election to select Wisconsin’s judges.)

    They explain that while states are permitted to impose limits on direct contributions by persons to candidates, states are not permitted to set restrictions on outside spending. Such indirect spending to candidates is ever-increasing: In 2008 for the first time, spending by non-candidate groups nationally exceeded spending by candidates on the ballot.

    “In the legislative and executive offices, it is accepted that special-interest lobbying and campaign spending can influence votes; but that is anathema to our most basic notions of fair judging,” they write. “Thus, the Supreme Court should hold that the compelling interest in ensuring impartial judges is sufficient to permit restrictions on campaign spending that would be unconstitutional for nonjudicial elections.”

    Read the full article here. For more on judicial selection, see an ACSblog video interview with Justice at Stake Executive Director Bert Brandenburg on Caperton v. Massey, a 2009 Supreme Court decision on judicial conflict of interest referenced in the op-ed.

  • January 25, 2011
    Guest Post

    This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision in Citizens United v. FEC. The author, Elizabeth B. Wydra, is chief counsel for the Constitutional Accountability Center. CAC filed an amicus brief in Citizens United with the League of Women Voters.
    It has been just over a year since a 5-4 majority of the Supreme Court ruled in Citizens United v. Federal Election Commission that corporations have a constitutional right to spend unlimited amounts of money from their general treasuries to influence our Nation's elections. With President Obama scheduled to give his State of the Union address tonight, it is also, of course, one year since the President spoke out against the Citizens United decision (and in return got the infamous headshake from Justice Samuel Alito).

    The American people were with Obama last year, and it appears that, a year later, the American people still agree with the President's denunciation of Citizens United. According to a new poll, "[f]ully 79% of voters support passage of a Constitutional amendment to overturn the Supreme Court's decision in the Citizens United case and make clear that corporations do not have the same rights as people." The problem of corporate money in the political system was made far worse by Citizens United, to be sure, and "We the People" might indeed need to amend the Constitution to right the wrongs wrought by the Supreme Court's decision. But the fundamental problem of Citizens United - the idea that artificial corporate entities enjoy the same constitutional rights that living, breathing human beings do - doesn't come from a defect in the Constitution that requires a correction. It stems instead from the Court's conservative majority's fundamentally flawed view of the Constitution and corporate personhood.

    As detailed in a Constitutional Accountability Center report entitled "A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law," Citizens United and its view of corporate rights cannot be squared with the Constitution's text and history or with Court precedent.

  • December 7, 2010
    Guest Post

    By Ian Bartrum, Professor of Law, Drake University Law School
    The results of the judicial elections held here in Iowa last month were, simply put, disappointing. Our Supreme Court (pictured), and our state, lost three extremely talented, highly dedicated public servants -- Justices who have served Iowans very, very well for a number of years. Iowa, like many states, has adopted a version of the Missouri Plan of merit-based judicial selection, and, as part of the plan, the Justices of the Supreme Court appear periodically on the statewide ballot for a retention vote. This year, that vote was held in the shadow of the Court's controversial opinion in Varnum v. Brien, in which the Justices unanimously struck down the state's ban on same-sex marriage. A coalition of socially conservative Iowans, under the loose leadership of former high school principal Bob Vander Plaats, mounted a vigorous campaign to oust those Justices that happened to be up for retention. With the help of a tremendous influx of out of state money, Vander Plaats's campaign succeeded, and we now await the appointment of three new Justices.

    Recently, the American Constitution Society -- along with the Drake Constitutional Law Center, the American Civil Liberties Union of Iowa, and GLBT advocacy group OneIowa -- sponsored a panel discussion on the election and its lessons at the Embassy Club in downtown Des Moines. I moderated a group that included Iowa Supreme Court Justice David Wiggins (in the first public appearance by any Justice since the election), Ben Stone of the ACLU, and Troy Price of OneIowa. Partly owing to the Justice's appearance, we had quite a large turnout and a fair amount of media attention. Two television stations, public radio, and all the local papers were in attendance-and, as the event happened to coincide with the Justices announcing they had picked a new interim Chief Justice, we managed to get lead billing in a number of outlets.

    Justice Wiggins spoke first and expressed heartfelt disappointment over the loss of his colleagues. He emphasized, however, that he had lost faith in neither the Merit Selection system, nor in Iowans' ability to understand and vote on important issues. "It is what it is," he said, conjuring up his best Bill Belichick impersonation, "Now we have to move on." He did say that, in his nearly thirty years in the Iowa Bar, the judicial nominating commission and the Governor have always "picked the very best person for the job." Though he was clearly disappointed with results of the election, he also made it clear that he did not think the system was broken.

  • November 4, 2010

    In a "historic upset," the three justices in Iowa up for retention elections were voted out of their seats following a well-funded campaign to remove the justices because of their decision to allow same-sex marriage.

    The vote marked the first time a judge has lost a retention election in Iowa since the retention system was implemented in 1962, The DesMoines Register reports. In the retention system, judges who were initially appointed are subject to an up-or-down vote with no opponent.

    "What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office," University of California, Irvine, School of Law Dean Erwin Chemerinsky, told The New York Times. "Something like this really does chill other judges."

    Conservative groups in 16 states launched similar campaigns against judges, spending more on retention elections this year than was spent in the past decade, but Iowa was the only state in which the justices lost their retention election, The New York Times reports.

  • August 19, 2010
    Guest Post

    Bert Brandenburg is executive director of the Justice at Stake Campaign, a nonpartisan campaign with 50 state and national partners that works to keep courts fair, impartial and free from special-interest influence.
    The last 10 years have brought a revolution in the election of state Supreme Court judges. Special-interest cash has become king. Most Americans fear that justice is for sale.

    This week, three reform groups released the first comprehensive national overview of spending on high court elections in the 2000-2009 decade, and on the political powerhouses seeking to tilt the scales of justice.

    The report, "The New Politics of Judicial Elections, 2000-2009: Decade of Change"- released by Justice at Stake, the Brennan Center for Justice and the National Institute on Money in State Politics - describes a decade-long attack on the very notion of impartial justice. And the campaign trail attacks are paired with a litigation crusade to destroy meaningful election regulation.

    Some of the report's findings:

    • Spending on state Supreme Court elections more than doubled in 2000-2009; candidates raised $206.9 million, compared with just $83.3 million in the 1990s.
    • Outside groups - funded by business groups, plaintiffs' lawyers and unions - poured in at least $39 million more in TV ads not approved by court candidates, ads that often viciously attacked and distorted the candidates' records. Much of this involved secret money from unknown bankrollers.
    • Twenty of the 22 states that hold at least some competitive elections for Supreme Court had their costliest election ever.

    There is nothing new about states electing judges. About 85 percent of all state judges face some form of election.

    What is new is the tidal wave of money. High court judges must routinely raise big money from parties who appear before them in court. Outside groups are spending millions more on ads to pressure judges and trash their reputations.

    All this money has caused profound unease. Polls repeatedly have shown that three Americans in four believe campaign cash affects courtroom decisions. And Justice Sandra Day O'Connor says public trust is injured when elected judges appear beholden to a small group of self-interested bankrollers.

    "This crisis of confidence in the impartiality of the judiciary is real and growing," she wrote in the report's foreword. "Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold."

    Why did special interests discover court elections? Two words: tort wars.