judgesonmerit.org

The Brennan Center for Justice at NYU School of Law has published a new article analyzing the negative impact the recent Supreme Court decision Citizens United v. FEC will likely have on state judicial races.  In that case, the Court overturned a long-standing ban prohibiting corporate expenditures in elections.  As a result of the ruling, corporations and unions will now be permitted to spend directly from their coffers to support or oppose candidates for elected office.  These include candidates for state judicial benches.

Buying Justice: The Impact of Citizens United on Judicial Elections, penned by Adam Skaggs, counsel at the Brennan Centers Democracy Program, reviews the recent trends in judicial election spending, surveys several states in which the decision is likely to have the greatest impact, and offers solutions to combat the deleterious effects of the ruling.

Skaggs beings with a telling quote from retired Supreme Court Justice Sandra Day OConnor, a long-time opponent of judicial elections:

If you’re a litigant appearing before a judge, it makes sense to invest in that judge’s campaign. No states can possibly benefit from having that much money injected into a political judicial campaign. The appearance of bias is high, and it destroys any credibility in the courts.

[After Citizens United], we can anticipate labor unions and trial lawyers might have the means to win one kind of an election, and that a tobacco company or other corporation might win in another election. If both sides open up their spending, mutually assured destruction is probably the most likely outcome. It would end both judicial impartiality and public perception of impartiality.

Based on numerous polls conducted across the country over the past ten years, it would appear that both the perception and the reality of judicial impartiality were imperiled even before Citizens United.  Skaggs cites a  poll showing that nine out of ten Pennsylvania voters believed large campaign contributions influences judicial decisions. In fact, Skaggs flags Pennsylvania as one state in which current problems with judicial races will only be exacerbated due to the Courts decision:

Before Citizens United, Pennsylvania prohibited corporations from making any contribution or expenditure in connection with the election of any candidate or for any political purpose whatever.  But that has not kept big money out of judicial elections in the Keystone State.  In 2009, Democrat Jack Panella broke a state record for individual fund-raising spending more than $2.6 million dollars but still lost to Republican Joan Orie Melvin.  Orie Melvin challenged Panella over his connections to his campaign supporters, lambasting him for taking $1 million from the Philadelphia Trial Lawyers Association and asking, ‘Is it pay-to-play? Is it justice for sale? I don’t know, but it sure sounds suspect.‘

The report spotlights PMC’s advocacy for a switch to a merit-based system of selection for the states appellate level judges:

Editorial boards across Pennsylvania have echoed the calls to adopt merit selection; in the words of the Philadelphia Inquirer, Pennsylvanians would have more faith in their judiciary without legal scandals and campaign-donor conflicts arising from judicial elections.

The problems with Pennsylvania’s judicial elections took a national spotlight this week. The Friday night primetime PBS news show “Bill Moyers Journal” was devoted this past week to the question we’ve been asking for a long time:

How would you feel if you were in court and knew that the opposing lawyer [or party] had contributed money to the judge’s campaign fund?

The show’s response to the question posed sends a grave warning to the citizens of Pennsylvania and of other states that elect judges:

This is not an improbable hypothetical question, but could be a commonplace occurrence in the . . states where judges must raise money to campaign for their seats — often from people with business before the court.

Though many states have elected judges since their founding, in the past 30 years, judicial elections have morphed from low-key affairs to big money campaigns. From 1999-2008, judicial candidates raised $200.4 million, more than double the $85.4 million raised in the previous decade (1989-1998).

Because of the costs of running such a campaign, critics contend that judges have had to become politicians and fundraisers rather than jurists.

Friday’s show discusses the expected impact the recent Citizens United decision will have on judicial elections, and starts with a re-airing of the jaw-dropping 1999 investigation that focused on “justice for sale” in 3 states, Pennsylvania, Louisiana, and Texas. In what can best be described as tragic irony, the 1999 show began in Wilkes-Barre, Pennsylvania, ground-zero for the infamous Luzerne County courthouse scandal, and details the tortuous fundraising and campaign strategizing required to get a seat on the Luzerne County bench.

One of the judges whose campaign for election was profiled, Peter Paul Olszewski, was not retained for another term in the 2009 retention election, in large part because of his perceived association with Michael Conahan, now charged with masterminding the cash-for-kids scandal. The 1999 segment quoted a candidate who ended up losing her election:

VIRGINIA MURTHA COWLEY: What it has become is the ability to buy the seat. If you can- if you have a half a million dollars, you can basically go out there and get your name on T.V. so many times that you will have bought yourself a job for the rest of your life.

BILL MOYERS: True enough, the winners for the two open seats are the candidates who raised the most money and made the most expensive T.V. commercials. It’s a system that disturbs even the winning media consultant.

This system surely can only further erode the confidence of Luzerne County and Pennsylvania citizens who have seen first-hand the corrosive influence of money on judicial conduct.

The full transcript of Friday’s show is available in three parts, here, here and here. The latest numbers in Pennsylvania, which the show’s website attributed to Pennsylvanians for Modern Courts, reflect that a record amount of money was spent on the latest race for a seat on the Commonwealth’s highest court.

The show helps make apparent why electing judges is so problematic: unlike other public officials, judges have to resolve disputes between parties on a daily basis. The expectation is that the judges will be completely impartial and fair to both sides. But when they are forced to raise money to get their seats, and when that money inevitably comes in from the very parties that appear before those judges, the public has a hard time believing that the justice being delivered is not influenced by that money.

The solution other states have found, that we believe Pennsylvania needs to implement, is to select judges based on merit, not fundraising abilities or other factors unrelated to a candidate’s qualifications as an impartial jurist.

BILL MOYERS: Do you think that [Justice O’Connor’s] idea of merit selection for judges, that somehow the governors of the state, with the help of disinterested parties, would pick a group of candidates for the State Supreme Court, do you think merit selection is viable?

JEFFREY TOOBIN: Yeah. And it works well in a lot of states. . . . Nothing’s perfect. But when you have bipartisan groups of people, screenings, or even governors alone picking judges, it almost invariably produces a better, fairer, more qualified, less partisan judiciary than when voters do it.

The problem is not that voters can’t make good decisions; it’s that the process of electing judges is a system that values fundraising and campaigning above qualifiscations. And in that kind of system, it’s very hard to cut through the rhetoric and soundbytes to get the information you need to make a good decision.

In an editorial in the Times Union (upstate New York), Abbe Gluck and Victor Kovner, members of the Board of New York’s Fund for Modern Courts argue that the U.S. Supreme Court’s decision in Citizens United should cause states to seriously consider replacing judicial elections with Merit Selection.  They write that opening the doors to greater financial participation in judicial elections by unions and corporations

[P]lainly jeopardizes the independence of much of our state judiciary. Plainly, the sense that judges may be beholden to financial donors — whether actual or even just perceived — undermines public confidence in our courts.

We share this concern and know that we are not alone in thinking that public perception is critical — in fact, when it comes to the courts, perception is basically reality.

The writers go on to explain:

Apart from any restraints on corporate contributions that may be adopted by Congress, it is up to individual states to close the gaping hole the court opened, and amend their state constitutions to end judicial elections. Whatever limits the Citizens United majority held that the federal Constitution imposes on corporate expenditures in judicial elections, nothing in the decision limits state governments from eliminating those elections in the first place.

This is a critical point.  The people have the right to choose the best way to select judges.  Nothing requires judicial elections.  As Justice O’Connor pointed out during the Georgetown Law-Aspen Institute Conference last week, our Founding Fathers placed great value on an independent judiciary and chose not to elect federal changes.  At that time, most states did not elect judges either.

The article concludes with an interesting note about Justice O’Connor and her unique insights into the issue of judicial selection: “It is no small detail that she is the only living U.S. Supreme Court justice who also has served as an elected state court judge.”  Justice O’Connor knows what it means to an elected judge, and she is urging states to reject judicial elections. Pennsylvanians should pay attention.

PMC Deputy Director Shira Goodman attended this week’s Georgetown Law-Aspen Institute conference focused on selecting judges in the wake of the Caperton and Citizens United decisions. Goodman reports that there were two clear messages: First, judicial elections are about to become even more expensive, partisan and divisive. The second and more optimistic message is that now is the time for judicial selection reform.

Justice O’Connor said the recent Supreme Court decisions should serve as a warning for states that elect judges and urged them to consider changing to Merit Selection. She explained that the Caperton decision demonstrated how contributions and campaign spending can poison the judicial system. In her view, Citizens United signaled that the problem of campaign spending in judicial elections could quickly be getting even worse.

This comes as no surprise, as we have long been concerned about the growing problem of mixing money with choosing judges. We hope that Justice O’Connor and others are correctly predicting that these recent decisions will serve as a wake-up call.

Pennsylvania needs to have a serious dialogue about how we choose appellate court judges. We hope that dialogue can proceed. If not, we will lose what Justice O’Connor has called the “one safe place” we have — fair and impartial courtrooms.

Rick Hasen, renowned election law scholar and author of the Election Law Blog, wrote on the New York Times Room for Debate blog yesterday that the Citizens United decision is Bad News for Judicial Elections.

Today’s decision casts . . . aside . . . the fiction that candidates do not feel beholden to those who engage in large, independent spending favoring the candidates (or bashing their opponents).

This is a bad enough fiction to apply to elections for accountable elected officials; it is much worse to apply to judicial elections, where we count on the impartiality and fairness of the judges hearing our cases.

We completely agree. In fact, in PMC/PMCAction’s press release yesterday, we made a similar argument:

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.

The simple solution is to change the way we select our appellate judges, taking them out of the campaign business altogether. Even without the inevitable flood of corporate spending on elections to come, far too much money is being spent on judicial candidates from lawyers, businesses, and political parties – the very groups that appear in court the most. Judges should be selected based on judicial ability, as in a Merit Selection system, not based on campaigning or fundraising ability.

For other takes on what this decision may mean for judicial elections, see the American Judicature Society’s response here and the Justice at Stake coalition’s here.

Yesterday the Supreme Court issued its long-awaited opinion in the case of Citizens United v. Federal Election Commission, overturning two Court precedents and effectively striking down decades of law intended to keep corporate money from influencing elections. After yesterday’s ruling corporations and unions will be allowed to spend money from their treasuries to directly advocate for particular political candidates.

Here’s what the local papers had to say:

The Philadelphia Inquirer reported that the 5-4 decision proved a victory for the Court’s conservative bloc, who maintained that a ban on corporate spending violated the First Amendment right to free speech. Most democrats, including President Obama, condemned the decision. In his dissent, Justice Stevens warned that the ruling “threatens to undermine the integrity of elected institutions around the nation.”

In a separate article, the Inquirer focused on what the decision will mean for Pennsylvania. Pennsylvanians for Modern Courts’ Deputy Director Shira Goodman predicted that yesterday’s ruling will “open the floodgates to direct corporate and union spending in statewide judicial elections.”

The Post-Gazette noted that the decision likely will cause Pennsylvania to change its own laws to now permit private corporations to spend their own money on political campaigns. PMC warned of the negative implications the decision could have on judicial races, a point conspicuously absent from the Court’s majority opinion.

The Times Leader quoted Goodman as well, underscoring the worry that the additional influx of money could affect the impartiality of state judges: “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.”

For a media round-up…

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).

As we reported earlier this month, an editorial in the Lancaster Intelligencer Journal/New Era “salute[d] the effort” to bring Merit Selection to the Pennsylvania appellate courts.  In response, PMC submitted a letter affirming that now is the time to act:

With the scandals in the Luzerne County court system, the continuing flow of special interest money into state court elections, and the likelihood that the U.S. Supreme Court will rule in October (in the Citizens United case) that corporations have a fundamental right to spend freely on state elections, it’s high time for a groundswell of Pennsylvania voices to let our leaders know we want our judges selected by their qualifications, not by a popularity contest and not by a fundraising arms race.

We hope Pennsylvanians will heed the call and make their voices heard.

We recently reported that PMC joined Justice At Stake and 19 other partners in filing an amicus brief in the Citizens United case.  As we noted, this campaign finance case likely will have important implications for the future of judicial elections.  This issue — particularly the poisonous influence of money in judicial elections — was the focus of our amicus brief.  Gavel Grab offers in-depth coverage of the case, including a three-part series on briefs filed in this case.