Emory Law Insights

Chapter 1: The Modern Era of Big Money Judicial Elections

We are reaching a crisis point in judicial elections, if we’re not already there. The American Bar Association formally opposes the use of judicial elections because of what it sees as the “corrosive effect of money on judicial election campaigns” and the associated “attack advertising” funded by increasing fundraising. Campaign spending on state supreme court elections in 2015–16 was the highest to date. The 2015–16 campaign cycle had twenty-seven state supreme court races in which at least $1 million was spent, the most ever in American history, and today, a third of state supreme court justices were elected in campaigns where more than $1 million was spent. State supreme courts races are also featuring record amounts of television spending and outside spending by interest groups. A shocking 82 percent of spending by interest groups in judicial races is subject to ineffective disclosure, where the individual source of funding is not publicly known. The result is that elections arguably become, in one scholar’s words, “floating auctions” where campaign spenders vie for influence over judges and their decisions.

Justice Sandra Day O’Connor, who made it her cause after retirement from the U.S. Supreme Court to champion judicial election reform, warns that “there are many who think of judges as politicians in robes” and agrees that “[i]n many states, that’s what they are.” Most voters, more than three-quarters of the public, already conclude that campaign contributions have influence over elected judges’ decisions. Worse, judges themselves generally agree that campaign money affects their decisions. Almost half agree that campaign contributions have at least “a little influence” on their decisions, and more than half of judges actually believe that they “should be prohibited from presiding over and ruling cases when one of the sides has given money to their campaign.” A staggering 80 percent of judges believe that interest groups are using campaign contributions to try to shape legal decisions in their favor.

We began studying judicial elections more than a dozen years ago by looking at whether judges were affected by the electoral incentives to win and then keep their jobs. Judicial elections are an almost uniquely American practice. Almost no other country entrusts judicial selection to popular elections. Even in the United States, only state judges are selected and retained through elections. Most people focus on federal judges and the system of presidential appointment and lifetime tenure, but seventeen out of eighteen judges in the United States are state judges—94 percent of all judges—almost all of whom face elections to win or keep their jobs. And state judges decide most of the legal cases in our country.

This book presents the best empirical evidence to date that campaign money biases judicial decisionmaking. Our earlier work established a robust relationship between judicial decisions by elected judges and the campaign contributions received from a wide range of donors: business groups, political parties, left- and right-leaning interest groups, among others. Elected judges demonstrably lean toward the interests and preferences of their campaign contributors across all types of cases.

This predictive relationship between campaign contributions and how judges decide cases is troubling enough. We will detail how campaign contributors appear to get what they want for their money. Judicial elections allow them to influence how judges ultimately decide cases that they care about and that affect their interests. Ideally, our judicial system should decide cases independent of the policy preferences and interests of wealthy donors. But election systems where campaign finance helps decide who wins judgeships almost inevitably allows money to matter more than most of us would like.

How Campaign Money Matters in Court

One of the most infamous cases of a wealthy donor using campaign donations to get what he wanted from the judicial system was Caperton v. Massey. The case eventually reached the U.S. Supreme Court and actually became the basis for a John Grisham novel! Don Blankenship, a wealthy mining magnate in West Virginia, lost a $50 million verdict to Hugh Caperton over a contract dispute. Blankenship knew the case would be appealed to the West Virginia Supreme Court and moved quickly, before the 2004 election, to improve his odds there. He spent more than $3 million to defeat incumbent Justice Warren McGraw and replace him with a new Republican candidate who Blankenship expected to be more sympathetic to his case. The Republican candidate, local lawyer Brent Benjamin, swept into office by defeating McGraw and, as Blankenship hoped, cast the deciding vote in Blankenship’s appeal, overturning the $50 million verdict against Blankenship’s company. The original plaintiff, Hugh Caperton, who lost that appeal, remembers “looking up at a judge who had just gotten $3 million . . . to be elected and thinking, ‘How in the world is this fair?’”

In a major upset, the United States Supreme Court actually agreed that it wasn’t. Caperton appealed the case up to the U.S. Supreme Court and argued that the Constitution required Justice Benjamin to recuse himself from Blankenship’s appeal based on Blankenship’s immense financial support of his election. The Court, in a 5–4 decision, sided with Caperton and ruled that Benjamin was required by the Due Process Clause to remove himself from the decision in Caperton’s case. Although courts had never required recusal in such a case before, the Court’s majority opinion explained that Blankenship’s $3 million in campaign finance support for Benjamin meant that “Justice Benjamin would feel a debt of gratitude to Blankenship for his extraordinary efforts to get him elected.”

This temptation to reciprocate by deciding in Blankenship’s favor in his case, which the Court called “strong and inherent in human nature,” created a “serious risk of actual bias—based on objective and reasonable perceptions—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 or directing the judge’s election campaign.” The Court thus reversed the West Virginia Supreme Court’s decision that overturned the $50 million verdict against Blankenship. The amount of money Blankenship spent for Benjamin—more than both candidates’ campaigns spent combined, indeed while Blankenship’s case was already pending and its appeal foreseeable—came too close to Blankenship “choos[ing] the judge in his own cause.”

The Court’s decision, in our view, was correct. We agree that campaign finance support can create indebtedness and judicial bias in favor of campaign finance contributors when judges are elected to the bench. This is what our book is about. The Court’s decision here, though, was based on its intuition that a justice faces temptations that “lead him not to hold the balance nice, clear, and true” when deciding cases involving his financial supporters. We push beyond mere intuition to the hard data that we think corroborates and clarifies the Court’s sensibility. Unfortunately, the Court’s decision in the Caperton case was very limited to the specific circumstances of the case and hasn’t served as much corrective for judicial campaign finance in subsequent years. It really hasn’t made much difference on the ground. As a result, we have plenty of campaign finance data and caselaw to study in our research on campaign finance influences on judges, the Caperton decision notwithstanding.

To be fair, the Court acknowledged that it couldn’t prove any quid pro quo agreement between Blankenship and Benjamin about how Benjamin would decide Blankenship’s case. In fact, there was never any legal allegation of any such quid pro quo in the case. Justice Benjamin claimed he was never biased in Blankenship’s favor. He argued that Blankenship’s support wasn’t decisive in getting him elected, which was much more complicated than Blankenship’s money. He claimed, as a judge, that he could remain independent from campaign finance incentives and decide the case fairly without needing to recuse himself. We’ll hear more about Justice Benjamin later in the book. His views on campaign finance and judicial politics evolved with more experience in the system.

But the point was never that anyone needed to prove a quid pro quo agreement or that Benjamin was decisively biased in this particular case. Instead, the Court thought it was “strong and inherent in human nature” that judges would feel indebted under similar circumstances, whether or not Benjamin himself did. It was reasonable for Hugh Caperton to think the system wasn’t treating him fairly to allow a judge so indebted to his opponent to decide his case. More importantly, as we will demonstrate, it would be rational for most judges to think about their next election in deciding cases involving their supporters’ interests if they want continued support and to win re-election.

It is important to acknowledge that money isn’t the only factor that affects judicial decisionmaking. Law matters because judges want to apply the substantive law as faithfully as they feel they can. There are certainly many cases where basically all judges agree, regardless of party, ideology, and campaign money, that the law is clear about how the case should come out. Of course, many other cases are harder calls, and judges do disagree about how the law applies and how the case should be decided as a matter of law. Judges have varying jurisprudential philosophies about how to interpret and apply the law. This is where party and ideology matter most. What’s more, scholars find a variety of other factors that seem to influence how judges decide cases, from judges’ race, perhaps their gender, and even the fellow judges deciding the case with them.

But campaign money matters too. When we look at the broader pattern of data on campaign finance money and judicial decisionmaking, we consistently find that money predicts judicial decisionmaking rather well. As we’ll describe further, we study comprehensive data over three decades of state supreme court decisions, ranging over the 1990s to the 2010s, as well as all the campaign contributions given to the elected judges deciding those cases across the fifty states.

What we see is troubling: Money too frequently manages to buy what it wants from judges and judicial elections. We find a robust and statistically significant connection between campaign finance contributions and elected judges’ decisions in favor of the contributors’ preferences over a wide range of cases. Money generally gets its desired outcomes from the elected judges it supports. Roughly speaking, averaged over all judges, each $10,000 contribution from a business increases the odds of a judge casting a pro-business vote by about 1 percent. As we’ll describe, money not only matters a lot, but even more money is pouring into judicial elections over time and making judicial elections more politicized, more partisan, and more like other kinds of state elections for non-judicial offices. We take you inside the numbers to understand how money influences judges, perhaps now more than ever.

Just as importantly, we think we have a new understanding about specifically why money matters so much to judicial decisionmaking. This is important because it not only clarifies the problem with money in judicial elections, but it also points to more promising, tailored solutions. It isn’t simply that electing judges as a general matter consigns our judiciary to slavishly obeying their campaign donors once they are elevated to the bench. Instead, we argue from our findings that criticism should be aimed less at judicial elections, or judicial campaign finance as a general matter, and focus more on the specific problem of judicial re-election. Judges appear to be influenced by campaign money not simply to pay back or otherwise reciprocate campaign debts from the last election that put them on the bench. Rather, judges appear to be influenced by the need to raise campaign money for the next election that will allow them to keep their jobs. These prospective re-election concerns drive the biasing effects of campaign money and therefore point toward judicial reforms that limit or altogether remove the biasing effect of re-election, such as a single-term limit.