Election night 2012 definitely felt like a victory for progressives. President Obama won re-election convincingly, with more than half the electorate casting ballots for the president, Democrats picked up two Senate seats and eight House seats. The fears of post-Citizens United, that several big donors, notably Sheldon Adelson and the Koch brothers, would buy their candidates their offices seemed to be allayed by these victories. The common narrative is that outside money did not matter much, as it did not statistically change who won in 2012.
While money, by and large, did not change who won on a national scale, that does not mean that money had no impact in election 2012. Money changed politics in 2012, in significant ways that you might not have noticed.
One very simple way that money has changed election victories and legal outcomes is in state supreme courts. At the state level, almost half of the states have a system in which their Supreme Court justices are elected, making them inherently political. That many state Supreme Court justices are elected is not at issue; what is at issue is the people who work to get them elected, and the fear that money can buy a vote on a state Supreme Court case.
To find an example of a group trying to buy a vote on a state Supreme Court, one does not have to look far. Before this election, before Citizens United even, there was a case in West Virginia involving a mining company suing a coal company for breach of contract. The mining company, Caperton, won a $50 million decision against the coal company, AT Massey. AT Massey appealed, and at the same time began bankrolling Brent Benjamin’s candidacy for the West Virginia Supreme Court, spending $3 million. Benjamin won a seat on the court and, when the trial between the companies came before him, was the deciding vote in a 3-2 decision for AT Massey, despite failed requests that he recuse himself.
Caperton eventually took this lack of recusal to the United States Supreme Court, where a 5-4 decision found that Benjamin’s participation in the trial violated Caperton’s Fourteenth Amendment rights. In the majority opinion, Justice Kennedy wrote:
We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.
The court decided that Benjamin’s involvement in the trial, considering the amount of funds that had been raised and given by AT Massey, created an unconstitutional “probability of bias.”
It is exactly this “probability of bias” that Americans should be fighting against. Both sides of the aisle have the right to be furious about unlimited amounts of money showering judicial campaigns. Conservatives do not want the trial lawyers to purchase judges to protect “jackpot justice” any more than liberals want businesses such as Massey to be able to call in a vote whenever a case against them comes to the court. The “probability of bias” principle cited by the Supreme Court removes Justice’s blind and places a thumb on the scales of truth and fairness.
Make no mistake, money is flowing in judicial elections, and it is going in both directions. Within a month of the November elections, ThinkProgress published an article about four conservative state Supreme Court candidates who had seemingly compromising contributions to their campaigns. This week, the Center for American Progress published a full report on elected justices who had outside contributions that figured prominently in their campaigns and that might create conflicts of interest, or “probabilities of bias.”
Of the eleven justices profiled in the report, five were supported by liberal groups, and six were propped up by conservative groups. In North Carolina and Michigan, enough justices were elected to keep the control of the Supreme Court tilted toward conservatives. Michigan, you may recall, was the former union stronghold that recently enacted right-to-work laws. The winning judges also did so by small margins, and it would be tough to suggest that the money played no role in the amount of exposure that a judicial candidate had.
None of this is to say that a state Supreme Court justice definitely will be biased based on these contributions. Dale Carpenter, a University of Minnesota law professor responded when asked if the justices followed a neutral path when making their decisions: “There’s evidence that the justices do vote against their policy preferences from time to time, enough to disrupt the general narrative that they just vote their ideological preferences.” And it is not outside the realm of possibility that a justice could view a case without looking first at their campaign bank accounts. Though, if they do vote in the best interest of those that contributed to their campaigns, that would seemingly confirm the “probability of bias” that the Supreme Court ruled violated Caperton’s right to due process.
One simple way to remove potential for bias would be to do away with unlimited campaign contributions to judicial candidates. This would eliminate most of the possibility of bias, because major donors cannot give to their heart’s content. This would force the judges to cultivate a diverse donor base to have the funds to run against an opponent, and develop a strategy that uses the funds judiciously, possibly slowing the barrage of negative emails and advertisements you see during election season.
But the best way to eliminate the “probability of bias” is to remove large donor money from judicial elections altogether through “clean elections” funded through public dollars. That gets outside money out of politics by allowing those running for state office to first demonstrate their viability by collecting a qualifying number of signatures and a minimum level of contributions. The state in turn provides campaign funding, usually from a voluntary tax or fees placed upon attorneys.
This solution is far from perfect. In North Carolina, an early adopter of clean elections, all the state judicial candidates accepted public funds, and the strict rules that went with them, but also spawned a state Supreme Court super PAC, which led to the race being the one that attracted more than $2.5 million from outside groups.
The current narrative that corporate money did not get its way in this election is wrong. Big money played a significant role in the election of 11 justices whose rulings could determine the validity of laws across the country. While none of the elections and ties to donors are as egregious as the Caperton case, it would be a farce to suggest that no attention would be paid when a case comes before a judge that has had his or her coffers filled by interests that would benefit from the judge’s ruling. In the Caperton opinion, Justice Kennedy quoted himself:
“Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.”
Our respect for the courts has eroded in part because we believe they are just going to play a role in the political squabbles we see every day in Washington, and this view is seemingly confirmed by the money judicial campaigns receive from parties interested in gaining favor. Some judicial integrity may have been lost in this election due to money. The courts can regain our trust, however, by ending judicial campaign contributions from large outside donors.
- Richard Long, an intern at Campaign for America’s Future, is a recent graduate of the University of North Carolina