The Need for Judicial Public Financing

“Money On My Mind” is a monthly column by Jay Mandle. The views expressed here are those of the author, (not necessarily those of Democracy Matters or Common Cause), and are meant to stimulate discussion.

February 2008
By Jay Mandle

In the thirty-one states where judges are elected, candidates for the judiciary, like everyone else running for office, have to secure private contributions to finance their increasingly expensive campaigns. Not surprisingly, lawyers are the principal source of funds in judicial elections. Attorneys, after all, are the people with the greatest stake in the outcome of court decisions. It does not take an ethicist to see the conflict of interest latent in this system. Lawyers who contribute are likely to be accorded more favorable treatment than those who do not. And sure enough, a recent empirical study of the voting patterns of members of the Louisiana Supreme Court shows just that.[1]

What the authors, Vernon Valentine Palmer and John Levendis, found was that political donations strongly influence judicial decisions. The greater the level of the contribution, the greater the degree of influence.

Take the case of one judge who voted 53 percent of the time for defendants and 47 percent of the time for plaintiffs when neither of their attorneys had made a campaign contribution to him. Now contrast that with how he voted when one side or the other had contributed to his campaign fund. When he received money from defendants’ attorneys he voted in their favor 75 percent of the time. Even more extreme, when he received financial contributions from the plaintiffs’ legal team, he voted on that side 90 percent of the time.

The amount of those contributions also was important. The New York Times article quotes Professor Palmer as saying “the greater the size of the contribution, the greater the odds of favorable outcomes.” With one judge, each additional $1,000 donation made it 30 percent more likely that the vote would be favorable to the donor’s client. And in the case of another judge, each $1,000 contribution had a 300 percent impact.

This of course is outrageous. In such a system, justice does not prevail; it is bought. It is bad enough that in our legal system the best legal talent is the most expensive, and that therefore the most effective representation is secured by the wealthy. But what the Louisiana study indicates is that even enlisting a good lawyer is not sufficient to secure justice. Your attorney must not only be competent, but a political donor as well.

Obviously, judges should exclude themselves from cases in which they have financial ties to participating attorneys. But there is a larger issue here as well. The same kind of conflict of interest is present whenever private donations fund political campaigns. Whether court rulings or legislative policies are at issue, donors occupy a position of privilege.

It is harder to identify the pay-off legislators make to donors than it is with judges. No consensus has emerged from the academic political science literature on the extent to which campaign donations swing roll-call votes. But that measurement-failure should not be surprising. Donor power is exercised long before legislation comes up for a vote. Where it is most influential is in setting the terms of the political agenda. Donors are powerful forces in determining what is and what is not politically debated.

That in turn is done as much by excluding certain issues as it is by their inclusion. Thus for forty or more years a plurality of the American people have signaled in polling data that they would support government efforts to reduce income inequality. Yet such programs have not even been actively discussed politically, not to mention enacted. The donor class simply will not support campaigns of office-seekers who seek to redistribute income.

It is telling that neither of the front-running Democratic presidential candidates has made income distribution a priority concern. Though both appeal for “change” and publicly are sympathetic to the needs of the large segment of the American people whose standard of living is stagnating or declining, neither has made it clear how he or she would go about reversing the trend towards income inequality.

The impact of the way we finance our political system closely parallels that of Louisiana’s judiciary. Obviously an answer that might apply to that state’s Supreme Court – that judges should not sit on cases where one side or the other has made a contribution to his or her election campaign – is inoperative politically. The process of exclusion would never end, given the multiplicity of sources of funding that come from big donors. Since it does take money to run a political campaign, fairness requires that that funding not come from a selective group but from everyone. Only in that way can disproportionate donor power be eliminated.  What this means is that other states should join North Carolina and New Mexico in creating an option for judges to run for office with full public financing – judicial fair elections.