Written by Sophia Gascoyne
The Supreme Court’s controversial Citizens United ruling in 2009, which permits corporations to spend unlimited amounts on election campaigns, has, not surprisingly, been a key topic for discussion in the months leading up to the 2012 presidential election.
Just as important, however, is the threat the decision poses to elected judges’ impartiality. In his dissent, Justice John Paul Stevens warned that “at a time when concerns about the conduct of judicial elections have reached a fever pitch (…) the Court today unleashes the floodgates of corporate and union general treasury spending in these races”.
A staggering 39 states elect at least some of their judges, typically for appellate positions. While more elections might seem like a good thing, they also bring the potential for campaign contributions to influence judicial independence.
This issue was highlighted in Caperton v Massey Coal Co, another significant Supreme Court decision from 2009. In a 5 to 4 decision, the justices ruled that it was unconstitutional for a state Supreme Court justice to hear a case if it involved the financial interests of his or her campaign benefactors.
Nonetheless, since 2009, judicial campaigns have been flooded with donations from unregulated superPACs, many of which are funded by huge corporations. A recent report published by Justice at Stake found that small donors are being trounced by a select group of “super spenders”.
In the 29 costliest elections in 10 states, the top five spenders each averaged $473,000 per election to install judges of their choice, while the average contribution from all other donors was around $850. This begs the question – are our justices more accountable to the law or to the few individuals holding the purse strings?
However, while Citizens United has undoubtedly added fuel to the fire, it would be unfair to saddle the Supreme Court with all the blame. We had already seen a colossal increase in judicial election spending before the Citizens United case was even filed, growing from $83.3 million in 1990-1999 to $206.9 million in 2000-2009.
Another concern with the popular election of judges is the perceived inability of voters to determine the qualifications and effectiveness of judicial candidates. In fact, many individuals themselves feel that they are ill-prepared to vote for judges as the code of judicial conduct prohibits candidates from stating how they would rule on specific legal questions. This lack of awareness coupled with low levels of enthusiasm amongst the voters only facilitates the domination of the electoral campaigns by special interests with large amounts of cash.
The obvious alternative to elections is the introduction of the federal system of judicial appointments at the state level. Although the potential for corruption here should give good governance advocates pause, the growing perception amongst Americans that justice is “for sale” is simply intolerable and must be addressed, sooner rather than later.
Sophia Gascoyne is currently studying Law and Spanish at the University of Edinburgh in Scotland, and is interning at Common Cause’s DC office for the summer.