The U.S. Supreme Court will soon decide whether states can ban judges from personally hitting up campaign donors for contributions. The judicial candidate challenging the Florida “solicitation” ban argues that the ban violates her First Amendment right to free speech, even though her campaign remains free to solicit funds on her behalf. The Florida Code of Judicial Conduct says that candidates “shall not personally solicit campaign funds” or endorsements. The candidate challenging the ban sent out a mailer asking for donations.
Some Court observers are not optimistic that the five-justice conservative majority will uphold this provision of the Florida Code of Judicial Conduct. Adam Liptak of the New York Times recently noted, “Federal judges are appointed for life and insulated from politics, and most of them do not think much of the distinctively American practice of electing judges. They make this clear by insisting that those elections, which take place in 39 states, be as political as possible.”
The 2002 Republican Party of Minnesota v. White decision ruling struck down a ban on judicial candidates taking stands on disputed legal and political issues while on the campaign trail. Justice Sandra Day O’Connor stated in her concurrence: “If the state has a problem with judicial impartiality, it is largely one the state brought upon itself by continuing the practice of popularly electing judges.”
Meanwhile, the Court general skepticism towards campaign finance laws in cases such as Citizens United impacts judicial races at least as much as they do other elections.
Of the 38 states that hold judicial elections, 30 have solicitation bans to mitigate concerns about conflicts of interest. Recent studies have shown correlations between campaign contributions and rulings. A 2006 New York Times report concluded that, over a 12-year period, the justices of the Ohio Supreme Court “voted in favor of contributors 70 percent of the time.” A 2009 study by Prof. Joanna Shepherd Bailey of Emory University found “a strong relationship between campaign contributions and judges’ rulings.”
An upcoming report from the Center for American Progress also seeks to examine the relationship between campaign cash and judicial rulings. With data on rulings by the North Carolina Supreme Court from 1998 to 2006, the CAP study has found that “repeat player” law firms that donated more money had higher success rates. In 1998, for example, the firms which contributed $400 or less won an average of 48 percent of their appeals, compared to 53 percent for firms giving more. The firms which gave $1,000 or more, by contrast, won 60 percent of their cases. Among the firms with more than five cases, law firms giving at least $1,000 won 71 percent of their cases before the high court.
These studies show the kind of correlation that erodes public confidence in a fair and impartial judiciary. While we can never read a judge’s mind to truly know why he or she casts a certain vote, the public perceives correlations between campaign cash and rulings as evidence of partiality.
Regardless of whether the act of personally asking for — or personally accepting — campaign contributions make it more likely that a judge will be biased, it is clear that judges personally asking donors for money will not help mitigate the growing perception that justice is “for sale.”
The Supreme Court will likely frame the question as whether the ban infringes the free speech rights of candidates, but it must weigh also any perceived infringement of free speech against the state’s interest in ensuring judicial legitimacy.
Unlike legislators, judges make decisions that impact individuals and individual companies. This makes conflicts of interest more problematic. As former Montana Supreme Court Justice James Nelson recently warned, “No Montanan wants to litigate in a court where the fix is in because the judge or justice is beholden to those who spent him or her onto the bench.”
The Court in 2009 ruled that a litigant’s Due Process rights were violated when the opposing party spent millions to elect a justice on the West Virginia Supreme Court. While the Court expressly did not find “actual bias” by the justice, the court noted “There is a serious risk of actual bias…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…”
If they strike down the Florida solicitation ban as infringing free speech, the justices may deliver yet another harangue against judicial elections. But unlike in White, the justices must ask themselves: If we are going to insist on electing judges, do we want them to spend their time discussing issues with voters — or, for that matter, do we want them doing their actual job of deciding cases — or would we prefer that they spend their time asking for campaign contributions?