The Supreme Court of the United States is well on its way to eliminating all restrictions on political campaign donations and spending short of outright or apparent bribery. In 2010, it ruled that corporations have the same free-speech rights as people. Earlier this month, the court struck down limits on aggregate contributions to candidates by an individual. The bottom line is that as citizens, we (and the corporations we control) appear to be free to spend our millions to elect our preferred candidates — unless, of course, we do not have millions or control a corporation that does.
These decisions pose general risks to our political system. Money talks. Well-funded campaigns succeed. But there is a more specific risk that we must recognize and find a way to deal with. The particular risk concerns judicial elections.
Georgia elects its judges. Campaigns, particularly statewide campaigns for the Court of Appeals and the Supreme Court, cost money. Our neighboring states of North Carolina and Florida, and more distant states such as Michigan and Wisconsin, have in recent years seen interest groups spend millions of dollars on statewide judicial races. Georgia has largely been spared so far, but it may only be a matter of time. We have to contemplate a future election cycle in which this phenomenon reaches us.
It is fair to ask why judicial races particularly should be a concern. The answer is that judges have a special role in our system, a role that requires them sometimes to protect the rights of people who do not have money to contribute to campaigns. Judges are duty bound to enforce unpopular laws and sometimes to strike down popular ones. Unlike legislators and executives, judges have no constituency but the law.
Yet there is empirical evidence that judges are more likely to rule in accordance with the interests of groups that contribute to the judges’ campaigns. One possible inference from such evidence is that large campaign contributions and expenditures have compromised the special, independent role of the judiciary. If that inference is right, the evidence reveals a form of corruption. Money has spoken.
On the other hand, it is possible that the correlation between the interests of contributors and a judge’s rulings shows nothing more than that the contributors found a like-minded judicial candidate. There is no corruption in that. But there is still danger. If judicial candidates come to depend upon special-interest groups or wealthy private donors to fund their campaigns, the public understandably may become suspicious. It just looks bad.
Citizens may come to perceive, rightly or wrongly, that judges are not merely in agreement with, but are in fact beholden to, those who can afford to spend or contribute millions of dollars to campaigns. Any such perception undermines the legitimacy of the judiciary, and people may find other ways — much less desirable ways — to resolve their disputes. Either the reality or the perception of corruption can be devastating.
On the big question of money in politics, there is a growing sense that a constitutional amendment may be necessary. Retired Justice John Paul Stevens has proposed in a recent book an amendment to remove any First Amendment protection from reasonable limits on campaign spending.
In the meantime, the prospect of unlimited campaign spending threatens at least the apparent fairness, and therefore the legitimacy, of Georgia’s judiciary. It has not happened yet. But if that day comes, we can only hope that the collective voice of Georgia voters can speak more loudly than the singular voices of those with millions to spend on judicial campaigns.
Patrick E. Longan holds the W. A. Bootle Chair in Ethics and Professionalism at Mercer University’s Walter F. George School of Law.
