Public financing for judicial integrity

By Bryce Farbstein

The time has come for Georgia to consider public financing for candidates in judicial elections.

Last week, Gov. Sonny Perdue named David Nahmias as the successor to Chief Justice Leah Sears on the Georgia Supreme Court. Sears decided to resign from her position this year, and by doing so before the expiration of her term, empowered the governor to make this appointment.

Georgia’s Constitution gives this power to the governor when a vacancy in the court occurs, such as when a judge resigns before his or her term ends.

After being appointed, these judges have to win an election; however, at that point, the judges are incumbents.

Thus, following an appointment, due to the current nature of judicial elections, voters may only truly have the opportunity to retain an incumbent, rather than have new candidates to choose from.

In practice, the majority of modern judges resign early, allowing the governor to appoint their successor.

Many in the legal and judicial community actually prefer this appointment process because it allows a knowledgeable commission to narrow the range of qualified candidates, and because it avoids the drama of contested elections.

However, Georgians are empowered by their Constitution to elect certain judges.

While a Constitutional change in 1983 made these judicial elections officially nonpartisan, Georgia has nevertheless seen a surge in contested judicial elections, and with it, a disturbing flow of big money into judicial campaigns.

From the year 2000 to 2006, for a seat on the Supreme Court of Georgia, spending by candidates and proxy political committees rose from approximately $40,000 to $4 million.

That’s a hundredfold increase over six years.

Given that no new limits have been placed on the amounts that so-called “independent” committees can raise and spend, the prospect for even more costly judicial elections grows.

Further, as more money has flowed into the judicial campaigns, more negative advertising has flowed out of them.

In light of these trends, it should be no surprise that Chief Justice Sears has decided to resign early and avoid, or at least defer, a contested judicial election.

In fact, all justices now on the Georgia Supreme Court first gained office by appointment. Simply put, most judges, from the justices of the Supreme Court to judges of the local Superior Court, have not preferred open elections.

Clearly, the judges are telling us something. Perhaps they know that the need to raise a lot of money deters qualified candidates from seeking judicial office, and raises the perception that donors have greater access to candidates.

Perhaps they understand the problem that campaign donors will more likely be attorneys or other parties who may later appear before the court, thus creating the appearance of bias in the court.

Perhaps they fear that the need to raise large sums heightens the need to take public positions on matters that may come before the court, again undermining the perception of the courts’ fairness and impartiality. All in all, the demands of campaign fund raising can distort the citizenry’s perception of the judicial system.

These risks to the integrity of the bench will continue as long as the current system of judicial campaign financing remains.

In order to preserve the perception and reality of fairness of our courts, and to allow judicial candidates to better share their values and temperament with Georgia’s voters, all Georgians, and especially members of the state bar, should support a system of public funding for qualified judicial campaigns.

Under such a system, like the one in neighboring North Carolina, a public fund would give matching financial grants to candidates who raise in-state, small-dollar contributions, such as contributions under $100.

With the alleviation of fund-raising demands, all Georgians will have a greater opportunity to engage judicial candidates, and more qualified candidates will run for judicial office.

Further, and most importantly, judges will not be beholden to any interest groups or donors, and the public’s perception of the fairness of our courts can be preserved.

Bryce Farbstein is a member of the Georgia Bar and coordinates the Judicial Election Reform campaign for Common Cause Georgia.