State court judges are facing unprecedented challenges to their ability to deliver fair, impartial justice due to growing campaign spending, including the rapid increase in unlimited spending by outside groups and individuals.
There are two policy solutions to this problem:
- Appoint judges using a good, non-partisan process with reasonably long or lifetime terms (with a mandatory retirement provision); or
- Establish partial public financing and effective regulation of judges’ elections including:
- Public financing in exchange for limits on spending and the size of contributions;
- Regulation and disclosure of outside, truly independent spending; and
- Strong conflict of interest and recusal standards for judges.
In 2009, Wisconsin passed the Impartial Justice bill, creating a partial public financing system for judicial elections. It provided up to $400,000 of public financing for supreme court candidates. To qualify, judicial candidates had to raise $5,000 to $15,000 in donations ranging from $5 to $100. They then received $100,000 for the primary election and $300,000 for the general election. [1]
If any opponent declined public financing and outspent them, candidates using the public financing system were eligible for up to $300,000 of additional public funding for the primary and $900,000 more for the general election. This additional funding would allow them to be competitive with the candidate opting out of the public financing system who, therefore, could spend unlimited amounts of money on the campaign. The law also reduced contribution limits for candidates who opted out of public financing from $10,000 to $1,000.
Unfortunately, the Wisconsin public financing system was defunded in 2011 as part of an intense, partisan battle over election laws, including voter ID requirements.
North Carolina passed a model campaign financing law for judicial elections in 2002. It provided candidates for the supreme court and the court of appeals with the option of partial public financing if they agreed to strict fundraising and spending limits. Candidates who did not participate in the public financing were limited to $1,000 contributions from individuals. Contributions from corporations were prohibited. Unfortunately, this campaign finance law was repealed recently in a partisan battle over voting rights and voter ID laws.
New Mexico in 2007 and West Virginia in 2013 created voluntary systems of partial public financing for judicial candidates. Under these public financing systems, candidates agree to limit their spending and to take limited funds from sources other than the public financing system.
A good appointment process is probably the best solution for avoiding the corrupting effects of large contributions and expensive campaigns. However, this may not be politically feasible in some states. Voters and wealthy campaign supporters may oppose moving from elections to appointments because of their loss of influence and power.
For elected judges, as for other elected officials, a system for financing campaigns is needed that allows candidates to effectively communicate with voters while avoiding the corrupting effects of large contributions and expensive campaigns. Given the U.S. Supreme Court’s rulings on campaign spending and free speech, currently the only solution is a public financing system. In such a system, a candidate agrees to limit spending and the size of contributions in exchange for partial public funding of campaign expenses.
A fair and impartial justice system is the bedrock of our democracy. If judges are elected, they need to serve the greater good of the public and not be beholden to wealthy special interests. Therefore, nowhere is it more important than in judicial elections to have partial public financing systems that limit spending and the size of contributions.
[1] National Center for State Courts, 2016, “Judicial Campaigns and Elections” (http://www.judicialselection.us/)
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