judgesonmerit.org

PMC and PMCAction released this press release today in response to the United States Supreme Court’s latest decision in Citizens United v. Federal Election Commission:

FOR IMMEDIATE RELEASE

Contact: Shira Goodman/Lynn Marks

Pennsylvanians for Modern Courts and PMCAction

(o) 215-569-1150; (m) 215-680-1163

goodman@pmconline.org

U.S. Supreme Court Lets the Money Roll In to Judicial Elections

Pennsylvanians for Modern Courts and PMCAction explain how new campaign finance decision will bring more money into statewide judicial elections

PHILADELPHIA (January 21, 2010) –  Pennsylvanians for Modern Courts (PMC) and PMCAction today predicted that the United States Supreme Court’s long-awaited decision in Citizens United v. Federal Election Commission will open the floodgates to direct corporate and union spending in statewide judicial elections.  The decision, focusing primarily on the right to free speech, grants corporations and unions a constitutional right to make independent expenditures in elections directly from their corporate coffers, without the need to establish separate political action committees to fundraise and spend money.  The decision invalidates the laws of Pennsylvania and 21 other states prohibiting such independent campaign expenditures. Shira Goodman, Deputy Director of PMC and PMCAction, explained, “It’s like the Supreme Court said ‘let the money roll in.’”

“But,” explained Goodman, “given Pennsylvania’s experience in the 2009 Supreme Court election, more money spent on getting judges on the bench is the last thing we need.”  According to a recent report by PMC, that election cost at least $4.5 million dollars, and when political party spending is factored in, likely several million more.

The public has been increasingly concerned about the role of money in judicial elections, worrying that justice might be for sale to the biggest campaign contributor or spender.  Today’s decision will only intensify those concerns by making it easier for corporations and unions that frequently litigate in the state courts to participate in electing the judges who will decide their cases.  As Justice Stevens noted in his dissent (quoting the Justice At Stake amicus brief PMC joined), “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.”

In recent years, judicial elections have become more like elections for other public offices, despite the fact that judges are different from legislators and executive officers.  Electing judges in expensive, partisan contests complete with negative ads, third-party spending, mass media campaigns and debates over “hot button” issues, makes it difficult to remember that judges are sworn to be impartial arbiters of the law.  Instead, people worry that popular opinion, personal bias, and the desire to please campaign contributors or supporters will sway judicial decision-making.  This is unacceptable, but it is the natural by-product of our electoral system. Justice Kennedy, writing for the 5-4 majority, discounted arguments that campaign contributions and expenditures create the appearance of influence and would “cause the electorate to lose faith in this democracy.” However, he failed to consider that the appearance of influence and access to judges already has been shown to cause voters to lose faith in our court system.

“There is a simple solution,” said Goodman.  “Change the way we select appellate court judges.”  Merit Selection is a hybrid system that combines the best features of appointive and elective systems and adds a new component – an independent, bipartisan citizens’ nominating commission to screen and evaluate potential candidates for the bench.  The Governor nominates a candidate from the nominating commission’s list of the most qualified, and that candidate is subject to Senate confirmation.  After an initial four-year term (and every ten years thereafter), a judge would stand before the public in a nonpartisan yes/no retention election.

Bills are currently pending in the Pennsylvania legislature to implement a Merit Selection system for the three state-wide appellate courts.  Amending the constitution requires the legislature to pass the bills in two successive sessions.  Then, the people of Pennsylvanian would vote in a referendum on whether to change the way we select appellate judges.

As noted in the amicus brief in which PMC joined, “Courts can only be impartial if they are independent.  To ensure due process, judges must be able to make decisions without looking over their shoulder at wealthy donors [and supporters] whose cases they must decide.”  The Supreme Court today made that more difficult.  Pennsylvanians have the opportunity to make it much easier:  change the way our appellate judges reach the bench.  “PMC and PMCAction believe it’s time to let the people decide.”

Pennsylvanians for Modern Courts is a nonprofit, nonpartisan organization working to promote the reform of Pennsylvania’s judicial system.  www.pmconline.org.  PMCAction is an affiliated nonprofit, nonpartisan organization that lobbies for court reform initiatives. www. pmcaction.org. Blog: www.JudgesOnMerit.org.

Also responding to the decision are PMC coalition members Justice at Stake and American Judicature Society (pdf).

Reports are coming in from the press conference held by Governor Ed Rendell. From the Harrisburg Patriot-News:

The governor, speaking on the heels of last week’s fresh wave of corruption charges lodged against former legislative leaders, bemoaned the fact a “broken system” has undermined some of his policy goals and caused other accomplishments to be largely overlooked.

To change things going forward, Rendell pledged new efforts to get legislation passed putting strict new rules on campaign financing, boosting citizen involvement in the redrawing of legislative and Congressional districts, and moving to merit selection of state judges.

From the Philadelphia Inquirer/AP:

Rendell renewed his pitch Wednesday for overhauling the state’s campaign-finance laws, the selection of appellate judges and the process by which state legislative districts are redrawn every 10 years.

WNEP-TV reported earlier on Rendell’s announcement, and you can read a short article and watch a video interview here.

You can see our earlier coverage of the Governor’s tour of the Northeast here.

The editorial board of the Reading Eagle makes a strong case to move to Merit Selection of judges in an editorial published today. The paper cites the record amount raised to date by Judge Jack Panella ($2.35 million), and that the total raised by both campaigns is expected to total over $4 million by the time final reports are due on February 1, 2010.

In fact, the numbers do not reflect the true amounts raised by the candidates. As we’ve reported on previously (here, here, and here, for example), the widely reported amounts raised in elections typically represent only money contributed directly to the campaigns of the candidates, and not third party and political party money spent directly on the election. Election observers will note that all of Judge Orie Melvin’s television commercials were paid for by the Republican Party, and thus represent a huge sum of money not reflected in her campaign’s reported contributions and expenditures (Panella’s ads were paid for directly by his campaign).

PMC’s Lynn Marks was quoted as saying why all of this is so troubling:

[T]he money comes from lawyers, law firms, unions and businesses who frequently litigate in the state courts. . . . These are not the types of records Pennsylvania should be proud of. But when you elect judges in partisan contests, the elections become more expensive, not less so.’”

The clincher:

Marks said nine of 10 Pennsylvanians polled by a state Supreme Court commission believe that judges are at least sometimes influenced by campaign contributions.

That’s no way to run an election for the state’s appellate court system. There has to be a better way, and there is. And it is nothing new. In fact former Gov. Tom Ridge, before he left office to join President George W. Bush’s Cabinet, urged the Pennsylvania Legislature to begin the move toward merit selection of statewide judges.”

There are currently bills before the state house and senate proposing a detailed plan for the selection of appellate judges based on merit. It’s time for the state to decisively take money out of the equation.

Wait, did we say partisan judges? Isn’t the very term antithetical to the core principle of independent judges and an independent judiciary? Of course it is. But partisan judges are the necessary outcome of our current judicial election system because they are nominated by parties and run on party labels.

A column by Eric Heyl in today’s Pittsburgh Tribune-Review gives the chronology of the recent spate of “mud-flinging” in the Pennsylvania Supreme Court campaigns.  We think mud is a generous euphemism for what is being spread by supporters of the two candidates.

More importantly, though, the article asks why this contest has taken such a negative turn. The surface answer: “Orie Melvin and Panella are resorting to such tactics because polls indicate they are virtually tied, with a majority of voters still undecided.”  But why are voters undecided? Because,

“Strictly in terms of legal acumen, it matters not a whit which candidate wins. Both Orie Melvin and Panella are experienced jurists who were highly recommended by the state bar association. Presumably, neither would ever confuse torts for tarts and attempt to down a few as an afternoon snack.”

Who ends up on the bench is of great importance to us, because decisions judges make affect all of our lives. But if both judges are equally qualified, then why would this election matter at all? According to the people who are most invested in the outcome, as the article points out, the reason is because:

“Whoever wins Tuesday tips control of the seven-member court in favor of his or her party. Whoever wins gives that party a distinct advantage in the legal battles expected when new legislative district maps are drawn after the 2010 Census.”

We’ve heard it before in the last few weeks, “this is such an important race because it will determine the political balance of the Court in a redistricting year.” It is so important, in fact, that both candidates, directly or indirectly, are flinging so much mud that “the dry cleaning bill is bound to be steep.” And we just accept it.

The incredulity must be creeping in.

When did it become okay to count the number of “Ds” and “Rs” on the bench? We should be trying instead to get the fairest, most qualified, and most impartial judges possible. While partisan elections are a critical component of the legislative and executive branches, we must remember that the judiciary is not a political branch of government. But until we begin selecting our judges and justices based on merit, and stop the circus of campaign fundraising and advertising, the mud-flinging will continue, and the public will get nothing from the process but the perception that its judges are anything but impartial.

Pennsylvanians for Modern Courts (PMC) has joined the Justice at Stake Campaign and 19 other judicial reform groups across the country, in filing an amici curiae (“friends of the court”) brief with the United States Supreme Court in Citizens United v. FEC case on September 9. The case focuses on campaign finance laws regulating corporate spending in elections.

The Citizens United case should be of particular concern to everyone worried that money is polluting the political process.  The Court is being asked to remove restrictions on campaign spending by corporate groups.  Such a decision “could trigger an election spending war in which companies, unions and other groups could tap directly into their treasuries.”

This would remove a major bulwark preventing runaway spending in judicial elections, a system already suffering from the corrupting influence of campaign cash. Said Justice at Stake’s executive director Bert Brandenburg: “The public needs to be confident that our courts are fair and impartial, and not swayed by election cash. No one wants justice to be for sale.”

As the brief argues:

“Special interest spending on judicial elections-by corporations, labor unions, and other groups-poses an unprecedented threat to public trust in the courts and to the rights of litigants. . . Unleashing corporate treasury funds on judicial elections . . .  will distract judges from their most important job: guaranteeing impartial justice to the litigants who come before them.”

PMC is proud to join the Justice at Stake Campaign and our other partners in opposing any steps that would increase the influence of money in the judicial selection process. Our judges need to be concerned with following the law, not the currents of election cashflow.

More information about Citizens United is available on Gavel Grab.