WASHINGTON — Is justice for sale? There is a strong relationship between campaign contributions and decisions by state Supreme Court judges in states that elect those judges, a recent study finds.
Although they caution that their sample is small, political scientists Chris Bonneau of the University of Pittsburgh and Damon Cann of Utah State University concluded that campaign contributions appear to affect the outcome of cases in states where judges are elected in partisan contests — Michigan and Texas in the study — but not where they are elected on a nonpartisan ballot — Nevada.
The “take-home point” of the study, Cann said, is not that competitive elections per se should be eliminated because of these contributions. But, he said, “We do need to spend time thinking about the format of the election in order to minimize the possibility of improper activities, whether consciously or unconsciously, between judges and campaign contributors, whether from parties or attorneys.”
The study analyzed the relationship between attorney campaign contributions and voting outcomes in the three state courts of last resort during their 2005 terms. The three states — Nevada, Michigan and Texas — have the advantage of being diverse on a number of critical dimensions, including region, the size of the court, the length of the term of office and the method of selecting and retaining judges (partisan versus nonpartisan), according to the authors.
Attorneys are one of the largest groups of contributors, accounting for 21% of the contributions to candidates in 2005-2006, the authors said. This was second only to the contributions made by businesses.
The authors acknowledge there are many factors that determine a judge’s vote: the facts of the case and ideology, to name two. But do campaign contributions influence judges, after these (and other relevant) variables are controlled?
“We control for the ideology of the judge in terms of his or her propensity to make a liberal versus conservative decision in the case at hand and find that contributions have an effect,” said Cann. “We also used a kind of more sophisticated statistical procedure sorting out whether liberal attorneys just give to liberal judges to affect the composition of the court so they don’t need a quid quo pro.”
Dollars were more likely to cause the decision than the ideological propensity of the judge, he added. “Dollars made a difference, whether a liberal was contributing to a liberal or a liberal [was] contributing to a conservative.
“The strength of this paper, relative to most other work in this area, is that most other work doesn’t account for that very problem,” he said. “We think both statistically and theoretically we’re able to suggest the contributions do have a real effect.”
For example, the study looked at the probability of a liberal decision for a judge with an ideology score of 47 (the mean in the sample) in a case in which the state was not a party to the case on either the liberal or conservative sides. When no contributions are made by either side (or the contributions are of equal size), the probability of a liberal decision is approximately 0.43. However, a campaign contribution differential of even just $2,000 shifts the predicted probability to a virtually certain win for the side offering the contribution.
“Perhaps even more surprising than our finding that these judges appear to favor campaign contributors is the finding that these judges appear to offer such favoritism for such small sums of money,” the study states.
Does that mean that if one attorney does not contribute to a justice, the other attorney simply needs to contribute the “paltry sum” of $2,000 to secure a judge’s vote?
“We think not,” said the authors. “However, in an environment where numerous attorneys and law firms are making contributions, judges notice those who are contributing relatively large sums of money. Our results show that when liberal attorneys contribute more money to a judge, the likelihood of a liberal decision increases; the same is true for conservative contributions. Further, the contribution advantage does not have to be that high for the likelihood of victory to increase significantly.”
In the nonpartisan state of Nevada, state Supreme Court races have become increasingly costly in recent years and signs of “new-style” judicial campaigns (such as negative campaigning and television advertising) are beginning to appear, according to the authors. The National Institute for Money in State Politics reports that attorneys contribute more to Nevada judicial candidates than do any other industry (e.g. casinos, real estate, home builders, etc.). About 35% of the cases decided by the Supreme Court of
Nevada involved at least one attorney who contributed to the campaign of at least one of the judges deciding the case, establishing the possibility of quid pro quo exchanges between attorneys and judges.
But Bonneau and Cann found no correlation between contributions and decisions.
“Many cases are heard in three-judge panels on that court,” said Cann. “If you give money to one of the judges, you don’t even know if that judge is going to hear your case, which is another aspect of institutional design that might mitigate the impact of campaign contributions to judges.”
Cann noted that the U.S. Supreme Court will hear arguments in March in a case involving a West Virginia Supreme Court justice’s refusal to recuse himself from a case in which one of the parties was a major, although indirect, contributor to his campaign.
“Obviously at issue in that case is contributions from one of the parties to the case, but the principle is similar in terms of whether one might expect to see this kind of quid-quo-pro action,” he said. “In general, parties to the case, unless they’re already in the pipeline with litigation on its way up to Supreme Court, generally don’t know whether they will be parties.
“The attorneys who make contributions in our study, you can make a reasonably safe bet, if you are of a certain profile, that some time in the next six to eight years you will make an argument in the state Supreme Court so you have a stronger incentive to contribute and hopefully receive some favorable treatment in return.”
Cann said he and Bonneau hope to examine a large number of states, at least 10, in the next part of their study.
“We don’t think every judicial decision is for sale for every judge in every case. We’re trying to figure out what the conditions are for where the influence of money can surface and hopefully make courts work better.”