Editorial

Buying the Judiciary

The U.S. courts are for sale.

Frustrated by state courts that insisted on respecting jury decisions and protecting victims' right to sue corporations that injure them, Big Business has figured out that it can simply buy replacement judges.

Most of the U.S. states -- 39 in total -- elect judges, either through direct, contested elections, or through "retention" elections, in which previously nominated judges appear before the voters in a thumbs-up-or-thumbs-down election.

These electoral races have traditionally been sleepy affairs, in which judges cite endorsements from various law associations and tout their professionalism.

In recent decades, there have been spikes of interest in some of these races, with corporations throwing money at judicial contests in California and Texas, among other states, to defeat pro-consumer judges and replace them with corporate-friendly arbiters.

But there has not been a nationwide drive to elect a corporate judiciary. Until now.

In 2000, the Chamber of Commerce and a host of business interests decided that they could buy state supreme court elections. That year, state supreme court candidates raised more than $45 million, according to the Brennan Center for Justice at New York University Law School, a 68 percent increase from 1998 and more than double the amount of 1994.

And that $45 million figure significantly understates the amount spent on supreme court races, because it does not include "issue advertisements" -- "independent expenditures" that do not say "elect" or "defeat" and thus are exempt from normal campaign finance rules.

Of course, not all of the money that poured into judicial races came from corporations and their allied lawyers. Trial lawyers and labor unions made major contributions to sympathetic candidates. But these forces could not match the expenditures from the corporate side.

In one state, Ohio, the Chamber's hyper-aggressive television advertisements and campaign backfired. One ad, showing Lady Justice peeking under a blindfold to look at campaign contributions from trial lawyers and unions, asked: Alice Resnick: "Is Justice for Sale?" Seeing through the hypocrisy of the ad from the Chamber -- which was infusing much more money into the judicial race than its adversaries -- Ohioans re-elected Resnick,

By 2002, the corporations had figured out how to be more strategic. First, they relied more on local business money, or at least downplayed the role of out-of-state contributions. Second, they enlisted new allies in their efforts, notably doctors in favor of limiting patient rights in medical malpractice cases. Third, they invested even more money in judicial races, and widened the number of states where they campaigned.

There was television advertising for judicial races in nine states in 2002, as compared to five states in 2000. Television advertising is expensive, so an investment in ads is a rough proxy for determining where corporations were involved in a concerted effort to influence outcomes.

Television advertising in political campaigns is generally effective, and especially so in judicial races, where voters generally know little about the candidates and name recognition is so important.

"In almost every race with television advertising, the winner was the candidate with the most support on the air," the Brennan Center found in a post-2002 election assessment. "Whether the ads were paid for by the candidates themselves or by interest groups, more advertising spots correlated with more votes."

Translation: the corporate candidates cleaned up in 2002.

This is a problem that, absent remedial action, is only going to get worse, with grave effects not just for the civil justice system, the main issue that is driving the corporate campaigns. It will matter immensely for jurisprudence related to workers' compensation, environmental law, employment law, civil rights, civil liberties, abortion rights, school funding, the rights of criminal defendants, and more. The genie cannot be stuffed back into the bottle.

One approach would be to switch from elections to appointments. But for all the faults of judicial elections, appointments bring their own set of pitfalls. Elections do, or at least should, offer a means to hold judges accountable for maintaining basic standards of professionalism and upholding people's fundamental rights. And, in any case, voters have been reluctant to forfeit their electoral rights and shift to a system of judicial appointments.

That leaves campaign reform. The U.S. Supreme Court's horrible decision in Buckley v. Valeo, holding that electoral spending limits are unconstitutional, places a major constraint on development of sane policy. But there are options available.

The most sensible option -- for judicial elections perhaps even more than others -- is the clean money approach. This involves full public financing of candidates meeting minimal criteria to show that they have a breadth of support. While candidates are free to refuse public financing, those accepting public monies receive matching money to offset expenditures above a certain level by candidates opting out of the system. The calculations would take into account independent expenditures for the candidates. For the system to work most effectively, as the Brennan Center, which endorses it, points out, there should as well be vigorous disclosure laws, especially for independent expenditures, and dollar limits on individual, corporate and union contributions.

These reforms are needed immediately. The last independent branch of government is now being subjected to corporate capture.