The Auctioning of the Judicial System

I have told this story before, but it bears repeating. Many legislators have had an experience something like this: A lobbyist visits and says, “I am working with Americans for a Better America. They have more money than God. $10 million in the last two weeks of a campaign to trash somebody’s reputation would be nothing to them. They really, really want this amendment. I don’t know what they would do if someone opposed them, but …” The result will be more amendments, or more amendments blocked, without the money being spent and without anyone even knowing what is going on. And every time the money is spent, and someone loses, the lesson will not be lost on those still in office.

At the same time, the desperation to raise money means lawmakers pandering to big donors or shaking them down—trading access for favors, or threatening retribution. And it means more vicious ads, done by anonymous groups, which only enhance the corrosive cynicism voters have toward all politicians. And it means more sham independence and blockage of disclosure, without any enforcement of existing laws by the outrageously lawless Federal Election Commission, led by Caroline Hunter and Lee Goodman. And we should relax?

But that is not the worst of the new world of campaign finance post-Citizens United. The worst comes with judicial elections—and that worst could be worsened by a pending Supreme Court case that may allow sitting judges actively to solicit campaign funds for their own elections.

Here is what we know. Loads of money—mostly conservative—went into judicial-retention elections in the last cycle in Florida, following a similar experience in 2010 in Iowa and Illinois. We saw similar efforts on a smaller scale in other states, including Wisconsin and Michigan. All had a ton of attack ads. Those efforts have exploded in the 2014 elections. In North Carolina, where repeal of the state’s Judicial Campaign Reform Act by the right-wing legislature opened the door to a further explosion of campaign spending, and where the GOP sees retaining a majority on the court (ostensibly, but risibly, nonpartisan) as a key to their continued hegemony in politics, the Republican State Leadership Committee spent $900,000 on an unsuccessful primary campaign to unseat Justice Robin Hudson, and will target Court of Appeals Judge Sam Ervin IV in his second attempt to move to the Supreme Court (the first one, in 2012, cost $4.5 million or more). Much of the spending will come in the next month, and will total many millions, most of it from outside groups. The Republican State Leadership Committee is targeting judges in Ohio, Michigan, Montana, North Carolina, New Mexico, and Texas.

Now lets leap forward to 2018 and talk about Texas.  Ah yes Texas…… Where the Judges are largely bought and paid for already. In 2015 Texas earned a grade of D- in the State Integrity Investigation, a national assessment of state government accountability and transparency by the Center for Public Integrity and Global Integrity. In 2018 that grade is now an F.

Here is the reality: If judges fear multimillion-dollar campaigns against them, they will have to raise millions themselves, or quietly engineer campaigns by others to do so. Who will contribute, or lead those efforts? Of course, those who practice in front of the judges will, creating an unhealthy dynamic of gratitude and dependency. Worse, imagine what happens when judges are deciding cases in which the stakes are high, and well-heeled individuals or corporations will be helped or damaged by the rulings. The judges know that an adverse decision now will trigger a multimillion-dollar campaign against them the next time, both for retribution and to replace them with more friendly judges. Will that affect some rulings? Of course.

I agree with retired Supreme Court Justice Sandra Day O’Connor that judicial elections in general are an abomination. They are no way to select impartial and high-quality jurists. But judicial elections in the age of Citizens United make it so much worse. This will ultimately undermine the whole idea of an independent judiciary, which is the single most significant bedrock of a functioning democratic political system. So, David, I do not relax about campaign spending. And neither should you.

Go figure.