For months District Judge Jim Parsons, a candidate for the Texas Supreme Court, has spent his free time dialing for dollars. In a state primed for political change by an influx of Latino voters, he is one of five Democratic candidates who hope well-placed campaign spending will help break the Republican Party’s lock on the high court. But to compete he must first beg for thousands of dollars from the very lawyers and litigants whose fortunes are determined by judges just like him.
“I’m sitting here right now, looking at a notebook where I have all the towns broken down and the lawyers listed,” Parsons said woefully on a recent afternoon devoted to fundraising. Each name demanded a phone call. And each phone call required a careful dance. Unlike a politician, Parsons cannot promise political favors in exchange for campaign lucre. He cannot predict his rulings on any future cases. But because of a June ruling by the US Supreme Court, his donors may soon expect more. In a divided decision, the court removed barriers that have historically kept Parsons and his fellow candidates from taking public positions on political disputes. Judges and lawyers have traditionally held that such public discussion of issues like abortion or the death penalty might hamper judges from deciding each case on its own merits.
The ruling is likely to exacerbate a crisis of credibility already gripping many of the thirty-nine states that elect appellate judges. In 2000, direct contributions to state Supreme Court campaigns rocketed nationally to $45.6 million, a 61 percent increase over the previous peak in 1998 and twice as much as in 1994. The flood of money is driven by a fierce battle over judicial philosophy that has pitted trial lawyers, consumer advocates and unions against corporations, their attorneys and their trade associations. In recent years, the corporate interests have gained the upper hand thanks in part to a vast investment in voter education campaigns that skirt disclosure rules, while hammering away at the idea of impartial legal review.
“I’m just overwhelmed that judicial races have been politicized to this extent,” said Parsons, fully expecting that business groups would mount an independent campaign against him, one that could dwarf his lawyer-by-lawyer fundraising.
The politicization has already tainted public opinion of the judiciary. Three out of four Americans now believe that the need to raise campaign cash compromises the impartiality of elected judges, according to a poll released in August by the American Bar Association. Even lawyers and judges have begun to hold their noses. A poll sponsored in 1999 by the Texas Supreme Court found that 79 percent of the state’s lawyers and 48 percent of its judges think campaign contributions have a significant impact on judicial decisions.
This fall, the stage is set for state Supreme Court races in thirty-three states that will be even more costly and possibly more harmful to the judiciary’s public face. Major corporations working through the US Chamber of Commerce plan to raise as much as $25 million in undisclosed contributions, more than twice what the group raised in 2000. The companies’ interests are clear: They seek to shift the makeup of state courts to judges who are much less likely to uphold costly product liability and personal injury verdicts, and in some cases environmental regulations. Jim Wootton, the head of the chamber’s judicial campaign, has warned both supporters and opponents to expect an unprecedented election season. “There will be a significant expansion of our level of activity,” he told a group of supporters last year.
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This will likely mean costly and bitter elections in states like Texas, Ohio, Michigan, Florida, Louisiana, Illinois, Mississippi, Alabama and Idaho, where the voters’ decisions could alter the courts’ ideological makeup. Other business groups plan to enter the maw as well, including the Business Roundtable, the National Federation of Independent Business, the Judicial Evaluation Institute and Citizens for a Sound Economy, a nonprofit funded largely by David Koch, co-owner of the energy giant Koch Industries. State Democratic parties, unions and trial-lawyer groups are preparing their own state campaigns in response, though they appear to be far behind in both fundraising and national coordination. “I think we are playing some catch-up here,” said Steve Rosenthal, the political director of the AFL-CIO. “It’s something we think is a real threat and a challenge to working people.”
These expectations bode poorly for reformers who have been trying to curb the ever-increasing politicization of the one branch of government designed for political independence. In January, the American Bar Association endorsed public financing of campaigns as one way to lessen the political pressures. “There is an undermining of faith in the impartiality of the judiciary,” says Bob Hirshon, the ABA’s outgoing president, who called the recent Supreme Court decision a “Pandora’s box.” “Checks and balances are at risk of being eliminated at the state level.”
In recent years, the single greatest wild card in judicial races has been the influx of anonymous spending beyond the direct control of candidates. Stealing a page from recent presidential elections, groups like the Chamber of Commerce have purchased “issue advertising,” often in the form of televised attack ads that do not explicitly endorse a candidate with terms like “vote for” or “elect.” This technique, which has also been used by the state Democratic and Republican parties, insulates donors from disclosure, allowing for nastier, more underhanded tactics. In 2000 such issue ads used dubious readings of the record to accuse judges of coddling pedophiles, accepting bribes for rulings or secretly harboring gay-rights agendas. A study by the Brennan Center for Justice, which reviewed the nation’s seventy-five largest television markets, found that the chamber and other business groups purchased two-thirds of the independent group-sponsored ads in the 2000 judicial races. A full 80 percent of the group ads attacked judicial candidates, compared with only 18 percent of the ads purchased by candidates. The backers of these spots remained nameless until last September, when internal documents from the chamber were leaked to the Wall Street Journal, naming Home Depot, Wal-Mart, DaimlerChrysler and the American Council of Life Insurers as $1 million donors. In at least two cases, the vicious tone of the ads backfired with voters, helping elect the chamber’s opponents in Ohio and Mississippi.
But such setbacks are minimal compared with the success business interests have had since corporations began using judicial elections to achieve their legislative ends. Elected Supreme Courts in Texas, Idaho, Michigan, Pennsylvania and Alabama have all shifted over the past decade to favor business interests following costly campaigns. In some cases, the new courts have proceeded to overturn established legal precedent in areas deemed crucial to corporate interests, like arbitration law and the limitation of jury awards. “The business community is not always successful, but on balance it is batting over .500,” said Anthony Champagne, a professor of government and politics at the University of Texas, Dallas. “The trial lawyers and the unions don’t seem to have come close to effectively mobilizing against them.”
These successes have encouraged the business lobby to expand its involvement. An in-house study commissioned last year by the Business Roundtable, a Washington lobbying group of corporate CEOs, concluded that corporations could benefit from even greater coordination on judicial elections. As a result, the Roundtable will join in the US Chamber’s effort this year, recruiting Morgan Stanley, Household International and the Dutch insurance juggernaut AEGON to contribute to the 2002 campaign. Home Depot and Mass Mutual are also giving to the chamber, according to the National Journal, a charge the companies will neither confirm nor deny. “We’re not just focused on electioneering,” explains Jeanne de Cervens, the director of government relations for AEGON, which owns such brands as Transamerica and Monumental Life. “It’s an overall effort, a comprehensive effort.”
By far the single biggest issue driving the massive spending is “tort reform,” a catchall term that generally involves new limits on the amount a jury can award victims in product liability or personal injury cases. Over the past decade, manufacturers, retailers and insurance companies have successfully ushered dozens of tort reform laws through state legislatures, but the courts in thirty-two states have held portions of those laws unconstitutional. Enraged corporate leaders have labeled the judges “activists,” rejected their judicial reasoning out of hand and threatened them with costly, knock-down, drag-out re-election campaigns.
That is exactly what happened in Ohio in 2000, when the US Chamber and Ohio state chamber of commerce went after Justice Alice Robie Resnick in one of the most divisive judicial elections on record. Resnick, an incumbent Democrat, had written a 4-to-3 opinion that struck down a tort reform bill passed by the state’s Republican legislature and signed into law by a Republican governor. Two Republican Supreme Court judges and one Democrat concurred with Resnick’s opinion, which noted that the court had already ruled much of the law unconstitutional in a prior version. But business groups nonetheless vowed retribution. Both chambers designed television spots that bordered on character assassination. One by the state chamber portrayed Resnick as lady justice holding a scale showered by money from trial lawyers. The voiceover accused her of reversing a ruling on behalf of a contributor, an accusation later debunked by state newspapers. (With deft irony, the ad ended by asking “Is Justice for Sale in Ohio?” though its financial backers never identified themselves.) Buoyed by voter displeasure with the ads, Resnick won by a wide margin, preserving for the moment the 4-to-3 ideological majority on the court.
But the victory may be temporary. This year Ohio will have at least two seats up for election, and observers are predicting a repeat battle. Fundraising has already outstripped past records, with the four candidates raising more than $1.9 million in the primary alone, far more than was raised in the entire 1996 judicial election. “The Supreme Court is the only real battle where you really have an opportunity to change the philosophical makeup of a body,” said Roger Geiger, the Ohio director of the National Federation of Independent Business, the nation’s largest small-business lobby. “You will see a much more galvanized business community.”
Such a prospect worries judges like Resnick, who blame business groups for bringing a new level of cynicism to the judicial races. “They still believe money buys these elections, and they want to control the Supreme Court,” she said. The prospect also concerns Richard Mason, the director of the Ohio Academy of Trial Lawyers. Despite the promise of six- or seven-figure campaign sums from the state’s trial lawyers, Mason expects to be outgunned by another influx of anonymous campaign spending filtered through business groups. “We really are talking about whether we want elections to be decided by people out in the open or corporations in secret,” he said.
Meanwhile, in other states, business groups have targeted Supreme Courts for another politically charged reason: environmental regulations. John Echeverria, the director of the Environmental Policy Project at Georgetown University, has tracked environmentally explosive races in Oregon, Washington, Louisiana, Michigan and others. He points to the 2000 Idaho Supreme Court race as a prime example.
The race began in 1999, when Justice Cathy Silak, a Democrat, wrote a 3-to-2 decision that upheld the federal government’s rights to control the water in certain designated wilderness areas. Even though Silak had ruled against the federal government in other water-rights cases, the state’s mining companies, real estate interests and newspapers lambasted her opinion as political fiat. The Idaho Statesman editorialized, “There is one quick-fix solution available to voters: elect a new supreme court Justice.”
In the campaign that followed, Republican leaders hammered home the water-rights theme, telling voters to turn out Silak or they would end up “pretty dry.” The Idaho Christian Coalition joined the campaign, polling candidates about their belief in evolution and stand on abortion. Allied groups ran advertisements that warned voters of the possibility that Silak might endorse same-sex marriage and partial-birth abortion. A secretive North Carolina outfit conducted a push poll that asked voters whether they “support the move by the courts to transfer control over Idaho water rights to the federal government.”
In the primary, voters turned Silak out of office by a nearly 20 percent margin. Months later, when mining companies, a paper manufacturer and several municipal bodies filed for a rehearing of the water-rights case, another justice, Linda Copple Trout, reversed her stand, bringing the court’s opinion with her. Though she had first ruled with Silak, Trout said her change of mind benefited from the “opportunity to further examine the federal reserved rights doctrine.” She also happens to be running for re-election this year. For Echeverria, the Idaho experience shows the effectiveness of business spending on judicial races. “Special interests figured out that you can get more bang for your buck in state judicial elections,” says Echeverria.
No company has embraced this philosophy more than Koch Industries, the nation’s second-largest privately held company and the culprit responsible for the largest civil fine ever imposed on a corporation under federal environmental laws. (The company paid $30 million in penalties for more than 300 oil spills from Koch facilities.) Koch has long been a sponsor of lavish “educational” junkets for state and federal judges, and its reach can be traced to many of the most contentious state judicial elections. But more often than not, company executive involvement is shielded behind front groups with misleading names, like Citizens for a Sound Economy. This Koch-backed group campaigned in 2000 for business-supported judges in at least four states, distributing more than a million voter guides, lawn signs and pieces of direct mail that railed against the contributions of trial lawyers. Asked about the group’s plans for 2002, spokesman Marty Reiser said, “We will absolutely be involved.”
That involvement will likely include the work of an obscure Oklahoma company called Sequoyah Information Systems, which produces “evaluations” of judicial performance that brand judges as pro- or antibusiness based on a selection of their past rulings. Founded by Marc Nuttle, a conservative activist who ran Pat Robertson’s 1988 presidential campaign, the group makes sure its evaluations grab headlines wherever they are released, most recently causing a splash in Pennsylvania, where an evaluation condemned the losing Democratic candidate as a potential liability to the state’s economy. Through much of the late 1990s the surveys were produced with the help of two other political operatives: Ron Howell, a former Koch executive and lobbyist, and the political consulting firm run by Tom Cole, the former chief of staff for the Republican National Committee.
The US Chamber has since adopted Sequoyah’s tactics. Last year the organization hired Cole as a senior adviser for its tort reform campaign. (Both he and Nuttle have since announced their intention to run against each other for Representative J.C. Watts’s Oklahoma Congressional seat.) The chamber also began working with another front group, called the Judicial Evaluation Institute, which plans to commission more studies from Sequoyah this fall. John McMackin Jr., a legal adviser to the institute who has lobbied on behalf of asbestos defendants, said the group plans many more surveys. “As the chamber becomes more active in this area,” he said, “we supply them with all their evaluations.” McMackin said JEI’s board included the Denver-based real estate entrepreneur Paul Ogle, former Clinton aide Greg Lawler and J. Frederic Rench, a trustee of the Heritage Foundation. McMackin would not disclose the group’s funders. For some donors, he said, disclosure “inhibits them.”
Lack of financial disclosures will likely dog judicial elections for years to come. In April a federal court ruled that the US Chamber did not need to disclose the financial backers of its television ads during the 2000 judicial races in Mississippi. The Fifth Circuit Court of Appeals relied on legal precedent that allows regulation of issue ads only when they use explicit words like “vote for.” “We recognize that the result we reach in this case may be counterintuitive to a common sense understanding of the message conveyed by the television political advertisements at issue,” the court wrote in its unanimous decision. “Nevertheless, the result is compelled by the First Amendment as interpreted by the Supreme Court.” Federal campaign finance reform, which is on fast track for judicial review later this year, could clear up this legal muddle. Under the law signed in March by President George W. Bush, independent expenditures in federal races will be regulated in the weeks leading up to an election. If the courts approve the law, reformers hope to propose similar regulations on state judicial races.
Roy Schotland, a law professor at Georgetown University who has closely studied judicial elections, believes that even if the courts continue to reject such regulation, disclosure requirements could pass constitutional muster if they were narrowly tailored to large contributions specifically for judicial elections. Schotland has also proposed limits on the amounts that one law firm can give to an election, which would help deal with excesses of suspiciously generous donations by members of big law firms. “There are major firms in some states, where they will have a Republican night and a Democratic night,” Schotland said.
In North Carolina, advocates are optimistic that the state legislature will adopt a public financing system for appellate court races and a new government-sponsored voter guide. Candidates would receive public funds, raised from general taxes and lawyer fees, if they agree to limit their own fundraising. If passed, the bill could prove the first success since the American Bar Association began supporting public financing, which might encourage qualified candidates who don’t want to join the money chase. Similar changes have been frustrated in Wisconsin, Illinois and Texas, though reformers in each state remain optimistic. “You never want to jinx yourself,” said Chris Heagarty, executive director of the North Carolina Center for Voter Education. “But we’ve got a 50-50 shot on this.” Nonetheless, the North Carolina bill, in its current draft form, would do little to regulate or restrict independent expenditures.
For two years now, Schotland has helped to gather Supreme Court justices who have been meeting under the auspices of the National Center for State Courts to explore other possible reforms. The judges have discussed extending term limits, eliminating partisan elections and establishing independent review boards. The latter plan has recently been adopted by the Louisiana Supreme Court, which set up a board to monitor judicial campaign activity. As an officially sanctioned watchdog, the group is empowered to speak out against unscrupulous campaign tactics, battling free speech with more speech. Other groups are working to do away with judicial elections altogether, though they face a steep battle in convincing citizens to give up their vote in favor of judicial appointment by elected officials, or merit selection. “No state has moved from popular selection to merit selection in over ten years,” said Seth Andersen, the ABA’s project manager for judicial independence. (The most recent attempt at dissolving judicial elections, during the 2000 elections in Florida, lost by a margin of 2 to 1.)
“I think we have to recognize that people want to elect,” said the Texas candidate Parsons, though he had no immediate solution to the skyrocketing amounts of money. “The same people that are pouring millions of dollars into races don’t want to change it, because they are winning.”
That leaves judges like Parsons with his list of lawyers to call and difficult decisions about how to navigate the murky world of political speech while remaining impartial enough to hear future cases without prejudice. Parsons is not optimistic. “I’m afraid that justice is still for sale in Texas and other states,” he said. “It’s just that there are different sellers and different buyers.”
And with that he went back to making his phone calls.