The Partisan Foundations of Judicial Campaign Finance

The Center for American Progress has just issued a report on judicial campaign finance that documents the increasing costs of campaigning in judicial elections and raises alarm that “[i]nstead of serving as a last resort for Americans seeking justice, judges are bending the law to satisfy the concerns of their corporate donors.”  Jeffrey Toobin followed up in the New Yorker that “the last thing you want to worry about is whether the judge is more accountable to a campaign contributor or an ideological group than to the law. . . . [b]ut it’s clear now that in many states you should worry—a lot.”

My colleague Joanna Shepherd and I study judicial campaign finance and argue that what is regularly missed in this simple narrative is the crucial role of the major parties.  In our empirical work, we find a very real relationship between contributions to judges and judicial decisions favorable to contributors, but the intuitive narrative of direct exchanges of money for decisions between individual contributors and judges is too simplistic to describe the larger realities of modern judicial elections.  The Republican and Democratic Parties broker connections between contributors and their candidates, and we argue that parties, not elections, seem to be the key to money’s influence on judges.

In a new paper still in progress, The Partisan Foundations of Judicial Campaign Finance, we identify broad left- and right-leaning political coalitions, allied with the Democratic and Republican Parties, whose collective contributions exercise systematic influence across the range of decisions by judges who receive their money.  The parties appear to coordinate judicial campaign finance under partisan elections where their investment and involvement is greatest, and what is more, we find that the robust relationship between money and judicial decisions largely disappeared in our data for judges elected in nonpartisan elections where parties are relatively less involved.

In addition, we go on to find a striking partisan asymmetry between Republicans and Democrats in judicial campaign finance.  Money from conservative groups in the Republican coalition, as well as from the party itself, is associated with more conservative judicial decisionmaking by Republican judges, even controlling for individual ideology.  However, decisionmaking by Republican judges is not responsive to money from liberal sources.  Decisionmaking by Democratic judges, by contrast, is influenced by campaign support from both liberal and conservative sources and thus cross pressured in opposite directions.  The result is that judicial campaign finance reinforces party cohesion for Republicans while undermining it for Democrats.  Campaign finance thus predicts judicial decisionmaking by judges from both parties in some sense, but is much more successful in serving partisan ends for Republicans, netting out in a conservative direction between the two parties.

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1 Response

  1. A.J. Sutter says:

    So what would be a better way than elections of bringing some sort of democratic legitimacy to the selection and retention of judges? Is it enough to regulate the finance of judicial campaigns? Given the current composition of SCOTUS, is such regulation likely to be upheld anytime in the foreseeable future?

    The legitimacy issue is a big deal in Japan, at least for those members of the electorate who aren’t so disgusted by politics here that they tune out altogether. Elected representatives don’t have even the appearance of input into the selection of Supreme Court justices; the Chief Justice effectively selects all associate justices. (The Prime Minister, who himself usually lacks any national electoral mandate, has some rubber-stamp input.) Japan’s constitution provides that the electorate has the ability to vote for the dismissal of new Supreme Court justices during the first general election after appointment and again at roughly 10-year intervals. But the lack of information about the individual Justices (even their appointment is never a news item here), their short tenure (5-6 years on average), and the relevant math (it takes a >50% disapproval vote for a specific justice) makes it almost impossible to remove anyone: it’s never happened since the constitution came into effect. The Supreme Court effectively controls the appointment of all other judges in the country, all courts being part of the central government. One approach to improving legitimacy has been the recent revival and improvement of the pre-WWII system of lay judges, but this applies only to criminal cases. (And it’s partly in response to a popular perception that professional judges were too lenient in sentencing.) It’s a puzzler.