Expert Commentary

Judges: How election financing affects judicial behavior

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.

North Carolina Supreme Court, 1951-1952. (NC State Archives)

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.

Key takeaways:

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:

Related research:


Keywords: judicial system, courts, Supreme Court, political contributions, donations, campaign finance, political behavior

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