Courting Corruption: The Auctioning of the Judicial System

Don't believe the Citizens United pollyannas. Watching money flooding into elections for judges' seat shows how dangerous unregulated campaigns can be.
By Norm Ornstein

Justice is blind, but not free. (Russell Boyce/Reuters)

Every once in a while, David Brooks writes a column in The New York Times that makes one just cringe. That was the case with his "Don't Worry, Be Happy" treatment last week of the impact of Citizens United on our politics. By defining the impact narrowly—does either party gain from the Supreme Court ruling and the new Wild West of campaign financing?—and by cherry-picking the research on campaign finance, Brooks comes up with a benign conclusion: Citizens United will actually reduce the influence of money in elections, and, I quote, "The upshot is that we should all relax about campaign spending."

Without mentioning his good friend's name, E.J. Dionne destroyed that case in his own Washington Post column. But a broader critique is necessary. First, Citizens United—and its progeny, SpeechNow and McCutcheon—are not really about whether Republicans get a leg up on election outcomes. They are about a new regime of campaign spending that dramatically enhances corruption in politics and government by forcing lawmakers to spend more and more of their precious time making fundraising calls, raising money for their own campaigns and their parties, and getting insurance against a last-minute blitz of "independent" spending that trashes them when they have no time to raise money to defend themselves. It also gives added traction to extreme groups threatening lawmakers with primary devastation unless they toe the ideological line.

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.

 

If judges have to raise millions for reelection campaigns, who will contribute? Of course, those who practice in front of the judges will.

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.

In Tennessee, Republican Lieutenant Governor Ron Ramsey, working hand in glove with the RSLC, led a conservative effort to unseat three justices up for retention. If they had lost, Gary Wade, Cornelia Clark, and Sharon Lee—all endorsed by a bipartisan evaluation panel—would be replaced by Republican Governor Bill Haslam. Once again, millions were spent to defeat them. Thanks to a counter-campaign, led by lawyers who practice in front of them, all three eked out bare victories in the August retention elections. Lew Conner, a Republican who served as a judge appointed by then-Governor Lamar Alexander, has said about Ramsey, "What he's doing, I think, is just terrible. It's an attack on the independence of the judicial system."

It is true that the politicization and increasing partisanship of the courts has paralleled, or followed, the tribalism in the political process. And it is true that a sharper tone in judicial elections preceded Citizens United. But the concerted efforts by activist James Bopp to go state by state and remove all restrictions on how judicial elections are run—making them just like political campaigns—combined with the effective elimination of boundaries on funding and the blockage of disclosure, have dramatically changed judicial elections. Vicious attacks on the integrity of judges themselves undermine confidence in the judiciary, but that is not the major problem.

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.