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Corporate America, a longtime player in partisan politics, has found a new and provocative way to flex its political muscle — in state judicial elections. This year, for the first time, affiliates of the U.S. Chamber of Commerce and at least one state Chamber have launched ad campaigns in judicial races, financed by millions in soft-money contributions whose amounts and sources may, and do, remain secret. Under federal and state law, groups can conceal their members’ identities and contributions as long as the ads they buy do not directly advocate a candidate’s election or defeat. For example, without mentioning elections, Chamber ads criticize an Ohio appellate judge for ruling in favor of trial-lawyer and union contributors, praise four others in Mississippi for putting victims’ rights ahead of criminal defendants’ and compliment one of them for protecting the court from the “influence of special interests.” The national Chamber has put as much as $10 million into several hard-fought judicial races. It has plans for Alabama and others, an official says. Labor and trial lawyers are also fighting hard to secure their positions, and in some cases, the U.S. Chamber’s contribution is only a fraction of what business interests are spending to attack targeted judges. Businesses affiliated with the Ohio Chamber of Commerce have spent millions on three soft-money ads for one supreme court race, one of the most hard-fought in the country. Ohio Supreme Court Justice Alice Robie Resnick, the writer of an opinion overturning a state “tort reform” law, is criticized in one Chamber of Commerce ad for receiving contributions from plaintiffs’ lawyers and unions, then ruling for them “nearly 70 percent of the time.” The ad accuses her of changing her vote after an “influential contributor” complained about one decision. She denies that any such letter influenced her unsuccessful vote in 1991 to reconsider a decision in a case over wages at a construction project. “I have never changed a vote because of a contributor or a request by anyone,” Justice Resnick says. The spread of soft-money ad campaigns means there will be more spending on judicial elections this year than ever, says Allan D. Sobel, director of the American Judicature Society in Chicago, which advocates removing judicial selection from politics. Eight states, including Alabama, Illinois and North Carolina, have partisan judicial elections. Thirteen others, including Ohio, Michigan and Mississippi, elect judges without party designation on the ballot. “The ads don’t support candidates,” says James Wootton, president of the Institute for Legal Reform, a Chamber affiliate formed in 1998 to counter big spending by trial lawyers in judicial races. “The ads give you candidates as examples of qualities that would be valuable.” Wootton would not say who gave money, only that the Chamber is spending $1 million to $10 million from its general fund. The ads spotlight judicial candidates’ qualities that the Chamber values and that are a concern, Wootton says. He says of Judge Resnick’s votes, “This is the kind of politicization of the court that’s just awful.” The institute’s Web site says its goal is “to stop the tidal wave of new lawsuits.” It has a counter that purports to tally U.S. court filings since January. As of Oct. 26, the scoreboard’s flipping numbers approached 13 million. Wootton, a former Justice Department attorney during the Reagan and Bush administrations, says of the protection of issue advertising, “It sounds like a game of semantics, but it is a game of semantics created by the Supreme Court. They say there is a very bright-line test that differentiates issue advocacy and express advocacy.” Some critics believe that judicial elections have suffered in the past decade from special-interest spending that undermines judicial independence. “It’s a clear-cut example of the problems we’re seeing in the politicization of judicial elections,” says Virginia E. Sloan, executive director of The Constitution Project in Washington, D.C., a bipartisan group active on issues that include the death penalty and judicial independence. The soft-money ads are the latest evidence of an escalating judicial election arms race, says Alfred P. Carlton Jr., chairman of the American Bar Association’s committee on judicial independence and a partner at the Sanford Holshouser Law Firm in Raleigh, N.C. They deny the public the opportunity to become an informed electorate, Carlton says: “That’s the evil that lurks with this kind of ad.” MISSISSIPPI SUIT The Chamber’s campaign triggered a suit in Mississippi, whose attorney general threatened court action to pull the ads as part of an investigation for alleged campaign disclosure violations. Claiming that the threat was a prior restraint, the Chamber filed for a declaratory judgment affirming its free speech rights. C hamber of Commerce v. Moore, No. 3:00CV778WS (S.D. Miss., Oct. 23, 2000). The Chamber entered the fray in Mississippi three weeks before the election to run four ads supporting four incumbents who, the Chamber says, protect victims’ rights. The spots were a surprise to the candidates. One squirmed in the spotlight and asked the Chamber to pull its spot praising her values. Tort reform and judicial activism are old issues in Texas and Alabama, where business interests have been clashing with trial lawyers in judicial races for years, says Anthony Champagne, professor of government and politics and judicial selection researcher at the University of Texas at Dallas. Now the conflict over those issues is spreading, he says, to places such as Michigan. There, one plaintiffs’ firm contributed about $225,000, or more than 20 percent of the money raised by three Democrats challenging three Republican incumbents. In Ohio, the business group affiliated with the state Chamber of Commerce didn’t wait for the national Chamber to launch its campaign. The group, Citizens for a Strong Ohio, ran a series of ads attacking Justice Resnick. One asked, “Is justice for sale in Ohio?” and noted that plaintiffs’ lawyers have contributed $750,000 to her campaign. Fred K. Baron, president of the Association of Trial Lawyers of America and a partner at the Dallas firm of Baron & Budd, says that ATLA’s political action committee does not plan to counter or compete with the U.S. Chamber’s campaign. ATLA supports candidates only for federal office, he says. Although it provides staff help, it’s up to the state trial lawyer groups to mobilize on behalf of judicial candidates, he says. Baron says that judges who receive the business community’s support might find that the big bucks spent on their behalf have a downside the next time they are on the ballot. “We were criticized for doing it,” he says. “Maybe it’ll backfire on them.”

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