By Billy Corriher, Associate Director of Research, Legal Progress, Center for American Progress
Spending on judicial elections has skyrocketed in the last 15 years, with special interest money flooding campaign coffers. Until recently, judicial elections were almost always low-key affairs that did not require large sums of campaign cash. State supreme court candidates since 2000 have received $247 million in campaign funds. A recent report from the Center for American Progress looked at some of the states which have seen the most campaign cash in judicial elections, in an effort to assess how campaign contributions could be shaping the law. The report describes how certain special interest groups wanted the law interpreted in a certain way, and then worked to elect judges that wrote those changes into law. “In courtrooms across our country, big corporations and other special interests are tilting the playing field in their favor,” the report states.
The U.S. Chamber of Commerce and corporate-funded groups that support "tort reform" began to pour money into judicial races, after they perceived some state courts as beholden to campaign donations from trial attorneys, many of whom made money suing corporations. The pro-corporate groups had a good track record early on. These groups now dominate judicial campaign expenditures in the states that have seen the most money – Alabama, Texas, Michigan, Ohio, and others. Contributions from Alabama's Chamber of Commerce accounted for 40 percent of all campaign contributions in the most recent high court election in the state, according to data collected by the National Institute on Money in State Politics.
With judges funded by big business gaining more seats on the bench, individuals suing corporations face higher and higher hurdles. A plaintiff could be anyone injured at an unsafe work site or while undergoing a surgery or a person whose family was harmed by an unsafe prescription drug, a negligent driver, or a fraudulent foreclosure. Such a person might look to state court for help in holding accountable the responsible party. But how can an ordinary citizen expect to receive a fair hearing in a high court flush with corporate campaign cash?
The states which have seen the most campaign spending now have supreme courts dominated by judges that favor corporate defendants over individual plaintiffs. The Center for American Progress examined case law from 1992-2010 to get a sense of how the law changed after judicial elections were flooded with special interest money. Special interests wanted the law interpreted a certain way, and judges whose campaigns were funded by these special interests wrote these changes into law. In Ohio, for example, the insurance industry was dissatisfied with rulings against insurers and began donating heavily to the campaigns of judges who then abruptly reversed those rulings upon taking office. After the Alabama Supreme Court developed a reputation for sticking up for consumers in arbitration cases, the state's chamber of commerce and other business groups inundated pro-corporate candidates with campaign cash. Data in the report shows that the new corporate-funded justices are more likely to rule against consumers in arbitration cases.
When fundraising for a court's election is dominated by corporate interests, judges may feel tremendous pressure to avoid ruling against corporations. State supreme courts have become a political battleground for special interests. Instead of judges who answer to the law, we'll have more judges concerned about how to keep the campaign donations coming, judges more focused on fundraising than the law.
Spending by “independent” groups is becoming pervasive in judicial elections, as documented in reports from Justice at Stake and the Brennan Center. In the one state that has a robust public financing system for judicial elections, the U.S. Supreme Court's Citizens United v. FEC opinion has opened the door to big, "independent" SuperPAC spending. The nation's highest court has also made public financing a less viable option by ruling that providing “matching” funds to publicly financed candidates is unconstitutional. Justice John Paul Stevens warned in his dissenting opinion in Citizens United that the majority’s ruling “unleashes the floodgates of corporate and union general treasury spending” in judicial elections.
Stevens wrote, “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” When money plays such an important role in judicial elections, the interest groups with the most money have an advantage.