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Legislators in seven states have introduced bills this year that would provide public financing to state supreme court candidates in judicial elections, many of which have become increasingly partisan and expensive. Several of the proposals are in states that faced contentious campaigns last fall, including Georgia, Illinois, Montana and Washington. In Wisconsin, where a recent Supreme Court race attracted record numbers of fundraising dollars, legislators are circulating a public-financing bill. Lawmakers in New Mexico and New York also are considering public financing of judicial races amid broader policy proposals for reform. “The fairness and impartiality and independence of our court system is very much at stake and very much at risk if we don’t do something about the way the supreme court races are financed,” said Mike McCabe, executive director of the Wisconsin Democracy Campaign, which supports public financing. “We’re headed in a very dangerous direction.” In recent years, elections for state supreme court seats have broken fundraising records and attracted negative campaign ads, many of them financed by private interest groups. In 2002, North Carolina became the only state to provide public financing for judicial elections. Jesse Rutledge, communications director of Justice at Stake Campaign, a bipartisan group in Washington that tracks judicial elections, noted that the majority of the candidates in North Carolina’s elections in 2004 and 2006 opted for public financing. In 2004, for example, 14 of the 16 candidates for the state’s two Supreme Court seats and three appellate court seats enrolled in the public-financing program. Four of the five winners were public-financing candidates. “As a result of the success of the program in North Carolina, many other states are looking to follow suit,” Rutledge said. “The impetus for adopting public financing has grown in recent years as more states are seeing nasty and expensive elections.” Action in Illinois Some of the most contentious races have been in Illinois, where donors poured millions of dollars into a Supreme Court race in 2004, followed by a high-profile appellate court election last year. In February, legislators introduced a bill that would provide $750,000 in public financing for Supreme Court candidates and $250,000 for appellate candidates. Court fees and taxpayers who opt to contribute by checking a box on their individual tax returns would finance the program. The bill also limits campaign contributions to $2,000 for individuals, corporations, labor unions and associations. “It creates an opportunity for those who can’t raise as much,” said Kwame Raoul, a state senator from Chicago who is co-authoring the bill. But he acknowledged that at least two other similar bills have failed in recent years, and that public financing for Supreme Court races might be “too ambitious” for Illinois. However, his current bill is the first to include appellate races, which, if passed, “would move the ball forward” toward public financing. Not everyone in Illinois agrees that public financing would reduce spending on judicial elections. “It may eliminate the opportunity to contribute directly to candidates, but it’s not going to muffle anybody,” said Edward Murnane, president of the Illinois Civil Justice League, a tort reform group in Chicago. He said he preferred an impartial selection process based on merit. But Margo Alpert, judicial project manager for the Chicago-based Illinois Campaign for Political Reform, which supports the bill, said changing the election process to a merit selection system requires an amendment to the state constitution. In the interim, public financing would provide a more rapid step in the right direction. “The evidence is showing this is not going to go away,” she said. “Something has to be done to protect the integrity of the judicial branch.” In Wisconsin, two legislators have been circulating a public-financing bill in the midst of a heated Supreme Court race. The bill limits contributions to $1,000 and provides $420,000 to each candidate, plus funds that would match special interest group contributions made to opponents who opted out of public financing, said state Representative Gordon Hintz, who is co-authoring the bill. The financing would come from general revenues. “We think now is the time to use the example of the Supreme Court race,” Hintz said. Special interest groups spent more than $3 million on two Supreme Court candidates in an April 3 election, said McCabe of the Wisconsin Democracy Campaign. Much of that money has paid for attack ads on television. “This race was more partisan than any race we’ve ever seen for Supreme Court in Wisconsin,” he said. “It had more special interest influence than any race we’ve seen for Supreme Court in Wisconsin and it was nastier and uglier.” The total spending for the race is estimated at about $6 million, including fundraising by the two candidates, he said. The prior fundraising record in Wisconsin was $1.4 million in 1999. Public-financing bills have failed three times since 1999, said Carolyn Castore, program director for the Midwest States Center, a regional nonprofit organization in Wisconsin. But the bill could pass, especially given the fundraising records broken in the recent Supreme Court race, she said. Montana’s state Senate passed a bill in February that would provide up to $150,000 in public financing for each candidate in a contested general election for chief justice, and $125,000 for each candidate in a contested election for a state high court associate justice. Similar bills have been introduced in the past two years since a high-profile Supreme Court race in 2004 raised an unprecedented amount of funds, said Chris Manos, executive director of the State Bar of Montana. “The sponsors of the bill saw what was happening in other states and really wanted to put something in place before there was any significant out-of-state special interest group financing,” he said. Reform in New Mexico Some states have introduced public-financing bills as part of a broader policy goal for reform. In New Mexico, Governor Bill Richardson signed a bill this month that expands public financing to include Supreme Court and appellate candidates. The state currently provides a public-financing option for candidates running for the Public Regulation Commission. Richardson convened a special session in recent weeks to consider a package of ethics reform bills that include public financing for judicial elections, said James Noel, executive director and general counsel of the New Mexico Judicial Standards Commission. He noted that New Mexico, unlike other states, has not had a multimillion-dollar judicial race. But “New Mexico is not immune from partisan and, in some respects, bitter issues.” In New York, a bill was introduced earlier this year that would provide public financing for judicial races. But Rutledge of Justice at Stake Campaign said proposals to change the judicial-selection process in New York have been on hold since the U.S. Supreme Court agreed in February to hear a case that challenges that state’s system of nominating and electing Supreme Court justices. (In New York, Supreme Court justices are trial-level judges.) In August, the 2d U.S. Circuit Court of Appeals found that New York’s system burdened the First Amendment rights of judicial candidates, political voters and associations. Lopez Torres v. New York State Board of Elections, 462 F.3d 161 (2d Cir. 2006). Speech restrictions Public financing hasn’t been an easy sell in some states. Legislators in the state of Washington failed to pass a bill last month that would have provided a pilot program for public financing and limited spending by special interest groups, which campaigned heavily during the September primaries of three of the state’s judicial races. The bill failed to move to the state’s House of Representatives last month by the cutoff date. Washington Governor Chris Gregoire had backed the proposal. “The governor is disappointed, clearly,” said Antonio Ginatta, policy adviser for the governor. “But she’s pleased the conversation took place.” Ginatta said the governor is recommending that the Legislature fund a study to analyze the effectiveness of public financing in other states. State Representative Shay Schual-Berke, who co-authored the bill, said she hoped the study would help her introduce a proposal in next year’s session. “The degree of campaign finance that occurred this last election has appalled many of us and makes us fear that our Supreme Court justices will no longer be impartial, free and independent,” she said. The chief justice of Washington, Gerry Alexander, whose re-election faced attack ads from private interest groups, declined to comment on the bill, but noted that in last fall’s primaries, “there was more interest in the Supreme Court races than there have ever been at any time.” Public financing restricts free speech and favors the incumbent in most races, said Erin Shannon, public relations director for the Building Industry Association of Washington, which paid for some of the attack ads and lobbied against the current bill. Moreover, the system worked, she said. “The bottom line is: The voters still made the right decision. Our candidates lost.” ‘Loud ad’ problem In Georgia, a public-financing bill that was introduced in the state’s House of Representatives failed to move out of committee last month. Valerie Crow, vice president of communications for the Georgia Chamber of Commerce, said the business group took no position on the bill, but said, “Businesspeople in Georgia should be involved in all elections and should be able to voice their opinions.” Georgia Chief Justice Leah Ward Sears acknowledged problems in the state’s judicial-election system. “We’re running into the same election problems” as in other campaigns, she said, such as the “loud ads, the irrelevant information, the high dollars.” But she said that public financing is one idea among many that could address some of those problems.

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