State supreme court judges who rely on public financing to fund their elections become less likely to favor attorneys who have donated to their campaigns in the past, a 2016 study suggests.
The issue: In most states, judges who serve on state supreme courts are elected by the public. Unlike other elected officials, however, judges must be impartial in their decisions. There is concern among some policymakers, legal observers and others that judicial decisions may be affected by donations to judges’ election campaigns. That concern has grown as spending on judicial elections, which generally involve relatively low profile races, has risen in recent years. In 2015-16, for example, special interest groups spent a record $19.4 million on TV ads for state supreme court judicial races, according to a November 2016 analysis from the Brennan Center for Justice, a left-leaning policy institute at New York University’s School of Law.
While some states provide public financing for elections as a way to limit donors’ influence, states cannot require candidates to use it. Two states — New Mexico and West Virginia — offer public financing for candidates running for seats on their supreme courts, according to the National Conference of State Legislators. North Carolina eliminated its public financing program for supreme court candidates in 2013. To receive the money, candidates must agree to limits on the amount of money they can collect from a single donor.
An academic study worth reading: “Does Public Financing Affect Judicial Behavior? Evidence from the North Carolina Supreme Court,” published in American Politics Research, 2016.
Study summary: A group of researchers — Morgan L. W. Hazelton of Saint Louis University, Jacob M. Montgomery of Washington University and Brendan Nyhan of Dartmouth College – sought to determine whether judges show favor to attorneys who contributed money to the judges’ election campaigns. The authors examined the behavior of state supreme court judges in North Carolina before and after the state adopted a voluntary public financing system for judicial candidates in 2002. Hazelton, Montgomery and Nyhan hypothesized that judges who received a public grant to finance their campaigns would be less likely to favor attorney donors than they had been when their campaigns were funded primarily by contributions from individual donors.
For the study, the researchers analyzed state campaign finance records and compared the voting records of judges who had opted into the public financing system and those who had not. They analyzed a total of 492 judicial votes on 125 non-unanimous cases that were decided between Jan. 1, 1997 and Dec. 31, 2009 and accompanied by a published opinion.
— In more than one third of the 125 cases analyzed, at least one judge had received campaign money from at least one of the attorneys involved in the case. In one case, seven of the nine judges involved had received campaign contributions from attorneys for at least one of the parties.
— The voting patterns of judges who opted into the public financing system “changed dramatically” after 2002. “In particular, their voting records became much less favorable toward attorney donors — a change that was the opposite of the shift observed among justices who did not receive public funding.”
— Judges were 60 percent less likely to vote in favor of attorney donors after receiving public financing for their elections.
— There is some evidence that judges who opted into the public financing system became more ideologically moderate in their decisions.
— “These results, which suggest that donors do in fact have distorting influence on judicial decision making, make a substantial contribution to the literature on the relationship between contributions and judicial behavior.”
Other resources for journalists:
- The National Institute on Money in State Politics tracks contributions to political campaigns in the 50 states.
- The American Bar Association offers a fact sheet explaining how judges are selected in various states.
- The National Center for State Courts is a nonprofit organization focused on judicial reform.
- Justice at Stake, a national judicial advocacy group, supports the public financing of judicial elections.
- The U.S. Supreme Court’s 2015 ruling in Williams-Yulee v. Florida Bar upheld Florida’s prohibition against judicial candidates soliciting donations to their own campaigns.
- A 2015 study from Adam Bonica of Stanford University and Maya Sen of the Harvard Kennedy School, “The Politics of Selecting the Bench from the Bar: The Legal Profession and Partisan Incentives to Politicize the Judiciary,” asserts that it is the first “to provide a direct ideological comparison across tiers of the judiciary and between judges and lawyers, and also the first to document how — and why — American courts are politicized.”
- A 2014 study published in State Politics & Policy Quarterly, “Public Opinion and Judicial Behavior in Direct Democracy Systems: Gay Rights in the American States,” suggests the decisions of elected judges are affected by public pressures.
- A 2013 study in the Journal of Public Economics, “To Elect or to Appoint? Bias, Information, and Responsiveness of Bureaucrats and Politicians,” finds that appointed judges are less likely to make errors and more likely to change their preconceived opinions about a case than elected judges.
- A 2013 paper presented at the Annual Meeting of the Midwest Political Science Association, “Repeat Campaign Donors and State Supreme Court Decision Making,” examines campaign contributions from attorneys and litigants and found that attorney donations were, on average, much larger than donations from litigants.
- A 2010 article in the New York University Law Review, “The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions,” concludes that “every dollar of direct contributions from business groups is associated with an increase in the probability that the judges will vote for business litigants.”
Keywords: judicial system, courts, Supreme Court, political contributions, donations, campaign finance, political behavior