Illinois and other states are bracing for the coming campaign season, with the costs of running for office and associated contributions threatening to hit record highs. This may be particularly true in contests not typically seen as battlegrounds for expensive ad campaigns, such as elections of state Supreme Court Justices.
Illinois offers several apt examples. The battle between Lloyd Karmeier (R) and Gordon Maag (D) in 2004 cost $9.3 million, a record amount at the time. Republicans and their funders’ goal were to curtail high jury awards for damages in Madison County IL. Karmeier won the election and currently is an Illinois Supreme Court Justice.
Illinois Supreme Court Justice Thomas Kilbride was the target a recall effort in November 2010, largely financed by JUSTPAC, whose top contributors include the Chamber of Commerce ($150,000) and American Justice Partnership (AJP – $180,000). The Chamber of Commerce has been accused of pioneering the effort to solve local legal problems for business interests through huge infusions of cash into state judicial elections (Justice at Stake). The motivation for these groups’ opposition to Kilbride’s retention once again centered on malpractice awards, specifically due to a 6-4 decision by the court to strike down a new state law limiting awards. The ads paid for by JUSTPAC did not address jury awards, instead focusing on Kilbride’s record on “criminal rights”. The ad features felons thanking the Justice for his support, but was described by the Illinois State Bar Association (ISBA) as “inappropriate and distorts the record”, a rare rebuke from the Bar. It should be noted that the ISBA had endorsed Kilbride prior to the ad’s appearance.
Justice Kilbride’s campaign fought back against JUSTPAC’s attack ads and won 66% of the vote, which, while enough for a victory, was below the 80% favorable votes seen by his contemporaries in the election. Most of Kilbride’s financing came from the Illinois Democratic Party.
The new normal in judicial elections
It is not just Illinois judicial races that are seeing the impact of large campaign contributions from groups fronting for business interests. “The New Politics of Judicial Elections 2000 – 2009” details how the appearance of “super spenders” has altered the national judicial scene. The new status quo for judicial high courts is pressure from the business world to vote their way in court, or face large infusions of cash from outside sources when re-election time comes. The cash is used to buy underhanded and misleading attack ads against justices who have failed to vote in a manner consistent with the goals of private business. The predictable effect of this national trend will be to erode the rights of ordinary citizens and their trust in the court system.
In West Virginia, Massey Energy spent $3 million electing a State Supreme Court Justice. Again, the preferred method in the campaign was attack ads, this time accusing their opponent of freeing a child rapist and allowing him to work at a school. Once elected, the justice voted in favor of Massey Energy in a court case involving a potential $77 million judgment. The US Supreme Court struck down that decision due to the flagrant conflict of interest.
A look at the 10 states with the highest campaign spending for justices shows that the top contributors spent an average of $473,000, while the rest of the contributions average $850 a person. Although some question the efficacy of spending six figures to elect a judge, in 11 out of 17 elections the high spender won his/her race.
The efforts by those on the right to tilt courts in their favor through large contributions have been fought by those on the left. Wealthy attorneys and others have found methods of making their own contributions to campaigns, using state party organizations to try and cover up the extent of their largesse (Justice at Stake pg3). Whichever side we look at, we see that these large contributions are seen as investments, just like buying any other commodity that a business or firm needs to thrive.
Even Judge Karmeier who owes his 2004 victory for the Illinois Supreme Court seat that he currently occupies commented that ““That’s obscene for a judicial race. What does it gain people? How can people have faith in the system?” Unfortunately for the common citizen, there is much to be gained by those spending huge sums on elections – as seen by Massey Energy evading a $77 million penalty in return for a $3 million investment. Not a bad return!
Improving the system
Judicial elections differ from other campaigns; candidates should be accountable to the citizens they serve, but also need to rule fairly on court cases even if the ruling is unpopular at the time. Not all states use the same system to elect or appoint their justices. and we should look at the different options available to see if it is possible to insulate the process from undue influence and restore some measure of confidence in the system.
Although one Texas Justice is reputed to have stated that “no judicial selection process is worth a damn” (Missouri Law Review Vol 74 pg 508), it is clear that some selection methods are worse than others. America is one of the very few nations left that uses elections to choose its judges. Public financing of judicial (and other) elections would help restore confidence that judges are not favoring one party over another. Merit selection is favored by many in the justice system. Another important reform has been pioneered by Wisconsin, which beefed up itsrecusal rules to insure that justices cannot rule in cases that would benefit those they are tied to. As it stands, those who have enough money and don’t worry about using misleading attack ads have a good shot at getting a State Supreme Court judge who owes his allegiance to them rather than to the law.