In the United States one of the most enduring myths of criminal justice is that our courts are neutral interpreters of law and past precedent. We go to great lengths to promote that mythology. Judges are dressed in black robes to signify no political, social or economic statuses. Courtrooms are highly formalized and ritualized. In almost all states candidates for election as judges are precluded from discussing legal and judicial issues in campaigns, presumably to give the impression that their decisions will be based solely on the evidence presented and the law on the books. In a handful of locales judges are selected on the basis of a “merit” system designed to insulate law from politics.
That this legal neutrality of the courts is a fiction is well documented. First, we know that judges primarily come from privileged backgrounds, graduating from expensive and elite law schools, and usually coming from a background of business or corporate law. Second, we know that justice has a price. Defendants represented by private attorneys, at great cost, fare much better in court and are given much more deference, than defendants represented by public defenders or court appointed counsel. And finally, we know that law is a self-regulating profession. Despite widespread appellate reversals based on prosecutorial misconduct, judges rarely discipline their fellow attorneys.
While all of these considerations are important and worthy of explorations, nothing makes more of a mockery of judicial independence than the infusion of vast sums of private political funds spent in judicial elections. The influence of special interest groups, corporations, and well-heeled contributors has exploded in the last decade. Tens of millions of dollars have been poured into judicial elections and retention votes by special interest groups. Negative political ads, unheard of in the first 225 years of American government, have now become commonplace in judicial elections. Even the accepted prohibition against judges and judicial candidates “hinting” about their interpretation of law in campaigns is being routinely abrogated. In a particularly compelling example of the perversion of judicial elections by special interest money, Don Massey, the CEO of Massey Energy, and a man under a four-count indictment for leading a conspiracy to cover up mine safety violations, donated almost $3 million to judicial campaigns since 2000. Simply put, in 21st century America the law and the judges who decide and implement that law are for sale.
In a single decade non-candidate spending, mostly from special interest groups have skyrocketed. In the 2001-2002 election year non-candidate spending in judicial elections was $2,686,561. By the 2011-2012 election year that spending skyrocketed to $24,050,032, over an 800% increase. By 2012 special interest spending was financing 43% of the cost of a judicial election campaign. The impact of special interest electioneering was most prominently felt in judicial elections in Michigan, Florida, Wisconsin, and North Carolina.
Not only does this explosion of money threaten judicial integrity but it is designed to push the courts in particular political directions on the far right. The special interest groups who spend the most to influence judicial elections have very clear goals. Across the board they seek:
- Court decisions favoring property rights over human rights.
- Court decisions weakening environmental laws.
- Court decisions reversing social programs particularly with regard to health care.
- Court decisions protecting corporations and businesses from lawsuits in cases focusing on dangerous products, worker health and safety, and fraudulent business practices.
- Court decisions favorable to repressive state policies related to policing and incarceration.
The list of the biggest spenders should send shivers up the spine of the American public. Since the 2000-2001 election year the biggest special interest groups seeking to influence judicial elections include:
|Ohio Chamber of Commerce||$7,609,168|
|Business Council of Alabama||$4,633,534|
|Michigan Chamber of Commerce||$3,040,150|
|Indicted West Virginia Coal executive Don Blankenship||$2,981,207
|Alabama Civil Justice Reform Committee (representing the insurance industry)||$2,699,568|
|American Justice Partnership (National Association of Manufacturers||$2,100,000|
|Wisconsin Manufacturers and Commerce||$2,022,348|
|Center for Individual Freedom (Tobacco Industry)||$1,824,140|
|American Taxpayers Alliance (Chamber of Commerce)||$1,293,080|
|Law Enforcement Alliance of America (NRA)||$924,075|
Since the Supreme Court’s ruling in Citizens United, special interest, and most specifically corporate political contributions have poisoned legislative democracy in the United States. Now those same elite interests are actively engaged in a campaign to purchase control of law and justice.
Bannon, A., E. Valasco, L. Casey and L. Reagan. 2013. The New Politics of Judicial Elections, 2011-2012. Brennan Center for Justice. Washington, D.C.
Sample. J., A, Skaggs, J. Blitzer and L. Casey. 2010. The New Politics of Judicial Elections, 2000-2009. Brennan Center for Justice. Washington, D.C.
Gary W. Potter, Ph.D
Professor, School of Justice Studies
Eastern Kentucky University