Moderated by Tom Sabulis
An Emory University law professor writes that the U.S. Supreme Court’s decision to strike down aggregate limits on some political donations imperils the independent judiciary in Georgia. A Mercer University professor counters that, while the danger exists, corruption has not tainted our state judiciary. The opportunity for big money to influence judges may arise in the future through trickle-down campaign funding, they say, but voters will always hold the power to oust offending judges, if it comes to that.
Commenting is open.
By Joanna Shepherd Bailey
Americans prize “due process of law” in resolving our legal disputes. We expect that when our disputes must be resolved by trial, that our case will be heard, fully and fairly, by an impartial judge.
But a recent United States Supreme Court decision threatens this expected impartiality by opening our courts to unlimited campaign contributions.
As Georgians, we must defend fair and impartial courts from unlimited spending.
As in most states, Georgia’s state court judges must run for election. This differs from the federal system, in which judges are appointed by the president, confirmed by the Senate and serve for life. Supporters of our current system of judicial elections assert that elections keep judges accountable to the people. Yet many also acknowledge that judges should not be subject to the same kinds of fundraising obligations and bare-knuckle politics that sometimes characterize elections for governor or the Legislature.
Until recently, Georgia managed to maintain judicial elections while limiting the corrupting power of broad fundraising. Georgia rules once prevented state judges from soliciting campaign contributions. Although these rules were struck down in 2002, our state has broadly avoided aggressive judicial fundraising. Some of our neighboring states, such as Alabama and North Carolina, have not proven so lucky; these states’ judges sometimes raise millions of dollars from the very parties whose cases they are to hear.
The Supreme Court’s recent decision in “McCutcheon v. Federal Election Commission” makes it easier for interest groups to organize large pools of money by removing the overall cap on how much one individual or campaign committee can contribute in a single election cycle. As with the court’s earlier decision in Citizens United, experts predict that McCutcheon will open the floodgates of money into elections of all kinds, and that this money will inevitably trickle down into judicial elections.
As a law professor at Emory Law School, I study the relationship between campaign contributions and decisions by state court judges. In one of my recent studies, “Justice at Risk,” I analyzed thousands of state supreme court decisions from all 50 states and over 175,000 campaign contributions to justices on those courts. I found that campaign money does affect how cases are decided.
Specifically, judges who receive substantial interest group contributions are much more likely to rule in favor of those groups in court cases. This study adds to the growing body of empirical evidence that demonstrates campaign money correlates with judicial outcomes. This potential influence should trouble judges, policymakers and citizens alike.
Our state has maintained a long-running tradition of judicial impartiality, consistent with our nation’s and state’s understanding of due process of law. The increased money that will surely result from McCutcheon threatens this ideal. We must strive to maintain impartiality in the face of a wealthy few that would purchase decisions from our courts.
Joanna Shepherd Bailey is an associate professor who focuses on law and economics at Emory University School of Law.
By Patrick E. Longan
The Supreme Court of the United States is well on its way to eliminating all restrictions on political campaign donations and spending short of outright or apparent bribery. In 2010, it ruled that corporations have the same free-speech rights as people. Earlier this month, the court struck down limits on aggregate contributions to candidates by an individual. The bottom line is that as citizens, we (and the corporations we control) appear to be free to spend our millions to elect our preferred candidates — unless, of course, we do not have millions or control a corporation that does.
These decisions pose general risks to our political system. Money talks. Well-funded campaigns succeed. But there is a more specific risk that we must recognize and find a way to deal with. The particular risk concerns judicial elections.
Georgia elects its judges. Campaigns, particularly statewide campaigns for the Court of Appeals and the Supreme Court, cost money. Our neighboring states of North Carolina and Florida, and more distant states such as Michigan and Wisconsin, have in recent years seen interest groups spend millions of dollars on statewide judicial races. Georgia has largely been spared so far, but it may only be a matter of time. We have to contemplate a future election cycle in which this phenomenon reaches us.
It is fair to ask why judicial races particularly should be a concern. The answer is that judges have a special role in our system, a role that requires them sometimes to protect the rights of people who do not have money to contribute to campaigns. Judges are duty bound to enforce unpopular laws and sometimes to strike down popular ones. Unlike legislators and executives, judges have no constituency but the law.
Yet there is empirical evidence that judges are more likely to rule in accordance with the interests of groups that contribute to the judges’ campaigns. One possible inference from such evidence is that large campaign contributions and expenditures have compromised the special, independent role of the judiciary. If that inference is right, the evidence reveals a form of corruption. Money has spoken.
On the other hand, it is possible that the correlation between the interests of contributors and a judge’s rulings shows nothing more than that the contributors found a like-minded judicial candidate. There is no corruption in that. But there is still danger. If judicial candidates come to depend upon special-interest groups or wealthy private donors to fund their campaigns, the public understandably may become suspicious. It just looks bad.
Citizens may come to perceive, rightly or wrongly, that judges are not merely in agreement with, but are in fact beholden to, those who can afford to spend or contribute millions of dollars to campaigns. Any such perception undermines the legitimacy of the judiciary, and people may find other ways — much less desirable ways — to resolve their disputes. Either the reality or the perception of corruption can be devastating.
On the big question of money in politics, there is a growing sense that a constitutional amendment may be necessary. Retired Justice John Paul Stevens has proposed in a recent book an amendment to remove any First Amendment protection from reasonable limits on campaign spending.
In the meantime, the prospect of unlimited campaign spending threatens at least the apparent fairness, and therefore the legitimacy, of Georgia’s judiciary. It has not happened yet. But if that day comes, we can only hope that the collective voice of Georgia voters can speak more loudly than the singular voices of those with millions to spend on judicial campaigns.
Patrick E. Longan holds the W. A. Bootle Chair in Ethics and Professionalism at Mercer University’s Walter F. George School of Law.