Georgia Legislators’ Guide...Georgia VOTE, Georgia Legislators’ Guide to Public Financing of Judicial Campaigns “The law makes a promise— neutrality. If the promise gets broken,

Georgia Legislators’

Guide

PublicFinancing

OfJudicial

Campaigns

A Georgia VOTE Coalition\Democracy South Publishing Project, Winter 2003

e weren’t talking about this 30 years ago, becausewe didn’t have money in [judicial] elections.Money in elections presents us with a tremendouschallenge, a tremendous problem and we areremiss if we don’t at once address it and correct

it.”

U.S. Supreme Court Justice Anthony KennedyFrontline interview with Bill Moyers, November 23, 1999

ur judges are trapped in a bad system, under siegeby special interests groups. Ordinary Americansbelieve that justice is for sale. If we can’t keepspecial interests out of the courts, where is thepublic interest safe?”

Senator John McCainJustice at Stake Press Conference, November 20, 2002

Georgia VOTE, Georgia Legislators’ Guide to Public Financing of Judicial Campaigns

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GEORGIA LEGISLATORS’ GUIDE

Public Financing of Judicial Campaigns

Georgia Rural Urban Summit League of Women Voters Georgia, Inc.

Common Cause Georgia

Project South

Georgia Public Interest Research Group

Peoples’ Agenda

Physicians for Social Responsibility

Georgia Chapter, Sierra Club

Southern Christian Leadership ConferenceNAACP, Georgia State Conference

Democracy South


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Decatur, GA 30032Phone (404) 284-1347 • Fax (404) 284-1347 • [email protected]

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At Stake: Fair and Impartial CourtsJudges Are Not Political Representatives

Judges and political representatives in Georgia have onething in common: they both get elected. But that’s about

it. After all, legislators and executivesare elected for their biases. Their job isto make promises, keep promises, and befaithful advocates for the unique interestsof the ‘folks back home.’ Judges aresupposed to be different: they’re supposed tobe faithful only to the law, not anyparticular interest or constituency. Theirjob is to decide cases one at a time, fairlyand impartially, without regard to politicsor special interests.

Why Fair and Impartial Courts Matter Our courts have a unique mission. They protect ourrights. They settle disputes. They uphold our laws. Andthey are insulated from politics, so that they can seekjustice. That’s why candidates for judicial offices mustbe held to different standards than legislators andexecutives. Judicial candidates have to be unbiased andimpartial, in appearance and in fact. Indeed, thelegitimacy of our courts rests on their reputation forimpartiality and nonpartisanship.

Our nation’s founders wanted courts to be independent, sothat judges could protect our rights from political whimsand overzealous interests. Our courts are respected notbecause they are popular, or attentive to the shiftingwinds of politics, but because they are independent.That’s why deeply controversial decisions on abortion,prayer in school, and the death penalty are widely obeyed—because Americans believe that independent judges strivefaithfully to apply the laws of the land to specificcases.


“The law makes a promise—neutrality. If the promise getsbroken, the law as we know itceases to exist. All that’s left is thedictate of a tyrant, or perhaps amob.”

Hon. Anthony M. KennedyDecember 1998

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The Crocodile in the Bathtub: How the Rising Tide ofCampaign Dollars Threatens a Fair, Impartial andDiverse Judiciary

Georgia is one of 21 states where judges are selected bycompetitive elections. Every judicial candidate mustwrestle with the difficulties of seeking public supportfor a job making decisions not based on public opinion.As Deborah Goldberg of the Brennan Center for Justice atNYU School of Law, has written:

. . . judges are human, and threats to job securitycannot easily be ignored. Honest jurists haveadmitted the pressure:

The late Honorable Otto Kaus, who served onthe California Supreme Court from 1980 through1985, used a marvelous metaphor to describethe dilemma of deciding controversial caseswhile facing reelection. He said it was likefinding a crocodile in your bathtub when yougo in to shave in the morning. You know it'sthere, and you try not to think about it, butit's hard to think about much else whileyou're shaving.1

The crocodile also slips into the bathtub everytime a judge hears a case that is important tomonied interests – be they trial lawyers, industrygroups, or other special interests. When a judge’scareer hinges on the ability to attract campaigncontributions, or third party expenditures, thepublic may reasonably question whether courtdecisions remain free of bias. In the past, whentotal donations were relatively modest, there wasnot a widespread sense that money was affectingjustice. As we will see, that’s changing: specialinterests are spending millions to elect “their”judges, forcing many judges to raise money likepoliticians—leading many Americans to conclude thatjustice is for sale.

The rising cost of judicial campaigns also creates a“wall of wealth,” deterring candidates who are not

1Gerald F. Uelmen, Crocodiles in the Bathtub: Maintaining the Independence of State SupremeCourts in an Era of Judicial Politicization, 72 NOTRE DAME L. REV. 1133, 1133 (1997).


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When judges’ professional future hinges

wealthy—especially racial and ethnic minorities—fromentering contests for judicial offices. The fact thatwhites disproportionately enjoy wealth in Georgiacontributes to a court system where others are under-represented. Twenty-eight (28%) percent of the Georgiansare black, but only 6 percent of Georgia judges areblack. Indeed, on Georgia’s superior courts, thepercentage of African-Americans dropped from 10% to 8%.2

It’s no surprise that this growing gap weakens theconfidence of many African Americans in the fairness ofGeorgia’s judicial system.3

2000: A Watershed Year for Campaign Fundraising inState Supreme Court Races

In Georgia, contributions to Supreme Court candidates werenot even recorded until 1994. Since then, campaignfundraising in judicial elections has been spiraling outof control. According to a recent report published byJustice at Stake, a national organization dedicated tokeeping courts fair and impartial, 2000 was a watershed

2 Walter C. Jones The percentage of Georgia judges who are black remains small SavannahMorning News, May 19, 2002.

3 Rep. Tyrone Brooks has asserted that "the perception from African Americans and minoritiesis that the only real number of minorities in the courtroom are the inmates standing before the bar," theAtlanta Democrat said. "The perception is that the justice system is not a fair system."


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year for fundraising in state Supreme Court elections:more than $45 million was raised nationwide, a 61%increase over 1998. Indeed, between 1994 and 2000, stateSupreme Court fundraising doubled.

Figure 1


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Research by the National Institute on Money in StatePolitics revealed that the average amount raised by aSupreme Court candidate grew 25% in just two years.

Figure 2

In Georgia, between 1996 and 2002 the average funds raisedby Supreme Court candidate tripled from $51,694 (1996) to$198,406 (2002).

Figure 3


Average Money Raised,Georgia Supreme Court Campaigns, 1992-2002

$0

$50,000

$100,000

$150,000

$200,000

$250,000

1992 1994 1996 1998 2000 2002

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The Big Donors are Lawyers and Business Interests

Half, perhaps more, of all donations come from lawyers andbusiness interests. A very preliminary inspection ofsummary contribution data in the 2002 primary electionsuggests that the proportion of attorney and law firmcontributions for Georgia is much higher than the nationalaverage.

Figure 4


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Special Interests are Driving Up Campaign Costs

In a democracy, speech is free but communication isexpensive. And, according to the New Politics of JudicialElections, besides record spending, the 2000 Supreme Courtelections saw the unprecedented use of televisionadvertising that are increasingly negative andcontroversial—often descending to a level that underminespublic confidence in our courts. These increasingly nastycampaigns stem from the desire of special interests andwealthy donors to elect judges who will hew to theirpositions. When a Supreme Court race in a battlegroundstate heats up, special interests rush in and supplementcandidate ads with independent investments in TV ads thatturn court campaigns into costly “air wars.” 4

Attack of Choice: Sham Issue Ads, Undisclosed Sponsorship

A “sham issue ad” is an advertisement for a candidate thatexploits a legal loophole that permits the ad’s sponsor toelude disclosure by packaging the ad as public educationrather than campaigning. According to the Brennan Centerfor Justice, “under the guise that they are paying for adsaimed at informing the public on a policy issue, non-partygroups sponsored at least $98 million of electioneeringissue ads in the 2000 campaign without having to disclosetheir funding sources, where they aired ads, or how muchthey spent. The lion's share of this spending by interestgroups occurred in the final 60 days of the election.” Solong as sponsors remain anonymous, it’s impossible to knowwhen they have interests before the court candidatetargeted by the ads.

There is little doubt that the profusion of unrestrained,third party sham issue advocacy has degraded the tone ofjudicial campaigns. Electioneering issue ads paid for bygroups are far more likely to go on the attack thancandidate-sponsored campaign ads. (Party ads go on theattack more frequently than candidate ads, but less oftenthan group ads).

4 A recent news article (National Journal, February 16, 2002) reports that "almost a dozen bigcorporations this year [2002] are expected to chip in $1 million apiece to a campaign aimed at helpingto elect more business-friendly Supreme Court justices and attorneys general in several states."Contributors to the Litigation Fairness Campaign, sponsored by the U.S. Chamber of Commerce andthe Business Roundtable, hope to raise $25 million and intend to target at least eight states where itbelieves that tort litigation has reached excessive levels. The money will go to issue advocacy, get-out-the-vote drives, and direct mailings.


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A “Ticking Time Bomb”: How Recent Court Decisions will resultin More Politicized Speech by Judicial Candidates

Traditionally, states that elect judges have severelyrestricted what judges or judicial candidates can sayabout disputed political and legal issues of the day.The purpose of these restrictions has been to protectthe independence of judiciary, by precluding candidatesfrom making campaign statements that might compromisetheir impartiality—or the appearance of impartiality—inspecific cases. As a consequence, most voters hadlittle idea of the political or ideological preferencesof competing judicial candidates. For challengers, theserestraints were particularly onerous since theyprevented debate on issues most important to voters.

In a landmark case last summer--Republican Party ofMinnesota v. White (formerly known as Kelly)—the SupremeCourt overturned a provision of Minnesota’s Code ofJudicial Conduct that prohibited a judicial candidatefrom “announcing his or her views on hotly contestedlegal or political issues.” In the collision between theFirst Amendment rights of judicial candidates and thestate’s interest in preserving an impartial judiciary,the divided court struck down the restriction. However,the Court left intact a separate provision of theMinnesota code prohibiting judges from making “pledgesor promises” regarding their future conduct on thebench.

In the fall, the 11th U.S. Circuit Court of Appeals inAtlanta went even further, overturning two sections ofGeorgia’s judicial ethics canons relating to the freespeech rights of judicial candidates. In Weaver v.Bonner, the court was outspoken: “the distinctionbetween judicial elections and other types of electionshas been greatly exaggerated, and we do not believe thatthe distinction, if there truly is one, justifiesgreater restriction on speech during judicial campaignsthan during other types of campaigns.“

In another segment of the Weaver ruling, the panelstruck down portions of the Georgia JudicialQualifications Commission’s canon barring judges frompersonally soliciting endorsements and campaign funds.Steven Jones, a Clarke County Superior Court judge who


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chairs the state Judicial Qualifications Commission,said:

"this is going to dramatically change the wayjudges are elected in Georgia. Who are you going tobe calling? You're likely going to be callinglawyers, some who may have cases in front of you. Idon't think it's good for judges to be out theredoing that." (Fulton County Daily Report, Oct. 22,2002).

Taken together, the rulings in White and Weaver arenothing less than a ticking time bomb that could destroythe independence that is the foundation of our courts.Special interests can now demand that judicialcandidates announce their preferences on hot buttonissues like affirmative action, voting rights, laborlaw, abortion, tort reform or the death penalty.Candidates will find these demands difficult to resist,since big money will ride on the results. Our rights,which are supposed to rest on enduring values, couldbend in the political winds. And court campaigns willbecome free-for-alls, as complicated legal issues arereduced to sound bites and bumper stickers. In otherwords, the White and Weaver decisions could usher in thekind of politics as usual that will erode publicconfidence in the fairness and impartiality of ourcourts.

How Georgia’s Interpretation of the Judicial Code of ConductCreates the Appearance that Judgeships are for Sale

In Georgia, the people elect judges. But since judgestypically retire or resign before their terms expire,most judicial careers begin with an interim appointmentby the governor. Judicial appointments are supposed tobe based on merit, and no one wants judges to “pay back”the governor who appointed them. For that reason, theAmerican Bar Association and most states believe thatcampaign donations by judges to the political campaignsof state office seekers are a threat to the integrity ofthe judiciary. But Georgia is one of a handful of statesthat has interpreted its judicial ethics code to permitjudges and judicial candidates to contribute to thepolitical war chests of those who appoint them. In fact,a recent Atlanta Journal-Constitution report revealed


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that 44 of 53 of Governor Barnes’ judicial appointmentsor their close associates—83 percent—contributed to thegovernor’s campaign. Governor Barnes adamantly deniesany connection between donors and judicial appointments.But consider the words of Buddy Darden, a formerChairman of Barnes’ nominating commission:

“Make no mistake about it. If you have two equallyqualified people and one had a relationship withthe governor and one didn’t, the one with therelationship with the governor would get it. . . .The appointment of judges is inherently a politicalprocess.”

The appearance of a quid pro quo in Georgia’s judicialappointment process further erodes the public’s trust inits state courts.

Public Opinion: A Growing Belief that Justice is forSaleThere is no empirical evidence of a pattern of money-for-favors corruption in our state Supreme Courts. As SamanthaSanchez, one of the nation’s leading researchers on thissubject, has observed:

. . . it is nearly impossible to accurately evaluatewhether contributors receive better treatment becauseof their contributions. The cases that go before theSupreme Court of any state involve the mostcomplicated legal questions that the state’s legalsystem produces and the result can be split decisionsor complex holdings which are not easily scored as avictory for one party or the other. Furthermore, itis impossible to guess whether the successful partywould have been successful without the contributionsince, unlike the situation that arises withcontributions to legislative candidates, one of thetwo parties before the Court will prevail, with orwithout contributions. Lastly, in one-third of thecases involving contributor-litigants, funds werecontributed from both sides of the case.

But one Texas study has dug further, seeking to shed lighton whether campaign contributions are connected tofavorable judicial treatment. In Pay to Play, How Big


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Money Buys Access to the Texas Supreme Court-conducted byTexans for Public Justice—researchers found a “strong,undeniable correlation between campaign contributions andaccess to the Texas Supreme Court.” Donors were four timesmore likely to have their petitions for review grantedthan were non-donors. Petitions for review are the meansemployed by a petitioner to overturn a verdict. Accordingto the study, in Texas, the bigger the donor the higherthe petition acceptance rate.

With or without proof, in the perception of mostAmericans, where there is smoke, there is fire. As NeillHerring, a 22 year veteran Georgia lobbyist said aboutprivate money in judicial campaigns: “It just looks bad,and it’s going to look worse.”

Over the last few years a series ofnational and statewide public opinionsurveys have been conducted by bothDemocratic and Republic pollsters

probing national opinion on the problem of private moneyin judicial campaigns. The results of these polls haveshown only small differences around a core theme – “votersare deeply concerned about the growing impact of money andthe chase to get it on America's courts.”5 In the fall of2001, Justice at Stake commissioned two survey researchfirms to conduct a national survey of 1000 voters(Appendix A). Key findings included:

➘ Seventy-six percent (76%) of voters now believe thatdonors to judges' campaigns get special treatment incourt,6 36 percent felt contributors have “a greatdeal of influence,”

➘ Eighty-six percent (86%) said that they were“concerned” about lawyers giving money to judges theyappear before, 64 percent were “concerned a lot,”

➘ Eighty-one percent (81%) said they were concernedabout Supreme Court cases where a participant hadgiven money to one or more of the presiding judges,

➘ Eighty-five percent (85%) were concerned that somegood potential judicial candidates wouldn’t runbecause campaigns were too expensive,

5 In, Justice at Stake commissioned Greenberg, Quinlan, and Rosner Research, Inc. andAmericanViewpoint surveys the Fall of 2001or 1000 voters and 2428 state and local judges.6

A similar poll conducted in the winter of 2002 in Michigan showed 80% of the voters polled thoughtcontributions influence the decisions that judges made. Thirty-nine percent thought that thecontributions have “a lot of influence.”


“It just looks bad, and, as campaigncosts escalate, it will look worse”

Neill Herring, Georgia Lobbyist

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➘ Ninety-one percent (91%) believed that specialinterest groups are trying to use the courts to shapepolicy on everything from the death penalty, abortionto affirmative action and gun rights,

➘ The polls also show that voters are concerned aboutinequality in the judicial system. Sixty-two percent(62%) of voters, including 90 percent of AfricanAmerican voters, believe that there are two systemsof justice in the United States-one for the rich andpowerful and one for everyone else.

Other surveys have shown that a large number of voters areconcerned about the capacity of judges to be fair andimpartial during election years, given the explodingpressures to raise campaign money.

Judicial Opinion – Widespread Concern, GrowingAlarmIn Georgia, judges must raise large cash donations fromattorneys and others interested in the outcome of casesthat they decide. So long as there is no alternative toprivately financed campaigns for judicial office, judgesin Georgia seeking election or reelection have no choicebut to enter an arms race for money that can only sullytheir integrity.

In the winter of 2001-2002, Justice at Stake commissionedthe same polling firms to survey 2428 state and localjudges (Appendix B). The results showed that by and largejudges share the many of the concerns of the public atlarge.

➘ Eight-in-ten state judges are concerned that specialinterests are trying to use the courts to shapepublic policy to their own ends,

➘ Twenty-six percent (26%) of judges believe thatdonors to judges' campaigns get special treatment,

➘ A majority of state judges (55 percent) believe thatthe tone and conduct of judicial campaigns has grownworse over the past 5 years,

➘ Seventy-four percent (74%) percent of state judgesare concerned that in some states, nearly half of allstate Supreme Court cases involve someone who hasgiven money to one or more of the judges hearing thecase,


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➘ More than 80 percent of judges are concerned with theidea of two systems of justice in the United States.Over 50 percent were ‘concerned a lot.’

Remedy of Choice: Voluntary PublicFinancing of Judicial CampaignsPublicly Financed Campaigns and How They WorkPublic financing of campaigns would help prevent wealthyspecial interests from taking over the judicial selectionprocess. It would make available an alternative source ofcampaign funding—public financing--that forces judges toraise money like politicians. In order to run as “CleanMoney” candidates and receive public funding candidatesmust agree to: (1) limit their spending, (2) limitcontributions they accept from private donors; (3) acceptrigorous disclosure requirements, and (4) show solidsupport among local voters. (On the premise thatincumbency is sufficient evidence of solid support amongvoters, some “Clean Election” campaign reforms exemptincumbent judges from this last qualificationrequirement.)

Common Myths About Publicly Financed CampaignsPublic financing of campaigns is unconstitutional.

Time and again the courts have turned back challenges topublic financing laws in Arizona, Maine, Vermont andMassachusetts. As long as participation of candidates inthe ‘Clean Money’ option is voluntary, public financingoptions get sustained. Does it interfere with anybody’sfree speech? On the contrary, the essence of Clean MoneyCampaign Reform is to broaden and expand freedom ofspeech, not restrict it.

Public financing of campaigns is welfare for politicians.

Nothing could be further from the truth. Most Clean Moneycampaign reforms erect tough but realistic hurdles forthose seeking public funding for their campaigns. In onemodel proposal, candidates must demonstrate broad supportby gathering hundreds or even thousands of $5.00‘qualifying contributions’ from registered voters. In thethree states now using public financing in state elections


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—Maine, Vermont, and Arizona—no pattern of abuse of publicfunds has occurred.

The costs of public financing are exorbitant.

Research by the National Institute on Money in StatePolitics has shown that candidates in partisan judicialelections raise almost four times more campaign funds thancandidates in non-partisan judicial elections. Aconsequence of our non-partisan judicial elections inGeorgia is that our fundraising average for Supreme Courtcandidates is roughly 45 percent of the nationalfundraising average for Supreme Court candidates inpartisan elections. In other words, compared to the costof a public financing option in Texas or Michigan, apublic financing option for judicial elections in Georgiawould be relatively inexpensive.

But what does “inexpensive” mean in this context? For anyparticular judicial seat or district, the cost of a fullpublic financing option is estimated by an analysis ofcampaign funds raised in previous judicial electioncontests for that seat or district. In Georgia, candidatesfor the Supreme Court and the Court of Appeals combinedreported raising roughly $1.1 million for the Augustprimary election of 2002. This was far and away the mostmoney ever raised in Georgia in appellate level elections.Ninety (90%) percent was raised for Supreme Courtcandidates. Just shy of 1 million voters participated inthe primary. The estimated cost per voting voter wasapproximately $1.18 per voting voter per biannual electioncycle or 59¢ per voting voter per year. Advocates of thisreform contend that the outlay for a public financingoption in Georgia is trivial in comparison to the costs ofa wholesale loss of public trust in our judicial system.

Taxpayers oppose public financing of campaigns.

The Justice at Stake survey noted above found that 80percent of the national sample support public financing ofjudicial campaigns. Fifty-seven (57%) percent ”stronglysupported” public financing of judicial campaigns. AGeorgia survey (Beth Schapiro & Associates, October 1999,Appendix C) revealed that a large majority of the voterssupport offering public financing to candidates who agreeto strict fund-raising and spending limits. A similarpoll conducted in North Carolina showed that 67% of thosepolled would support a public fund to ensure that judges


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do not have to fundraise to run for office. Not only isthe public behind this reform, but so too is much of thepress, including Georgia’s leading newspaper-The AtlantaJournal-Constitution (Appendix D).

Lawyers and judges oppose public financing of judicial campaigns.

Quite the opposite: as a group, lawyers and judges groupnearly universally detest the current system of fundingjudicial campaigns. Justice at Stake found that 61 percentof the judges surveyed supported a public funding optionfor judicial campaigns. Thirty (30%) percent said thatthey “strongly supported” such a program. On February 5,2002, after five years of intensive investigation anddeliberation, the House of Delegates of the American BarAssociation overwhelmingly adopted a resolution callingfor public funding of judicial campaigns in states wherejudges are elected, beginning with appellate-level judgecampaigns (Appendix E). In the historic effort to passthe nation’s first full public financing system forjudicial campaigns, more than 1000 attorneys and judges inNorth Carolina (Republicans and Democrats) submittedstatements calling on the General Assembly to enact apublic financing program for Supreme Court and Court ofAppeals justices.

Here in Georgia, the original Senate Resolution (SR 520)seeking establishment of a Joint Legislative StudyCommittee on Public Financing of Judicial Elections(Appendix F), was strongly endorsed by the Atlanta BarAssociation (Appendix G). And the Honorable OgdenDoremus, Chairman of the Council of State Court Judges,was an early supporter of the effort to establish a publicfinancing option for appellate judges in Georgia.


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A Public Financing Option for JudicialCampaigns is Worth StudyingAlfred P. Carlton, Jr., President of the American BarAssociation, has written:

“A voluntary public financing option could turn outto be one of the most cost effective investments thatthe legislature can make in restoring publicconfidence in the courts, constraining soaringcampaign costs and dissolving wealth barriers tojudicial office.”

We have a choice. We can continue with judicial electioncampaigns that are being taken over by private partieswith vested interests before the courts. This coursecarries a heavy price-a growing wealth barrier to judicialoffice and decreasing public confidence in the fairness,impartiality and independence of our courts. Or, we canexamine the feasibility of an optional system of publiclyfinanced judicial election campaigns that would give alljudicial candidates a chance to campaign in the name ofthe public interest, not special interests.


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Acknowledgements

January 2003

In many ways this guide is a collection of the scholarshipand knowledge of many experts and advocates. To avoid aclutter of footnotes, no attempt has been made within theguide to supply attribution for each contribution fromthese experts. Instead, we have chosen to acknowledge thekey organizations and individuals that have done theresearch and analysis that underlie this guide andsupported its creation. With indispensable help from theSapelo Foundation, Democracy South (Carrboro, NC)underwrote the project. Clearly the American BarAssociation supplied the initial corpus of research andthe persistent drive behind years of advocacy that haveelevated this issue onto the national agenda. Much of themost relevant current research and analysis has beenundertaken by Justice at Stake (Hon. Geri Palast,Washington, D.C.). The work of Deborah Goldberg of theBrennan Center for Justice at NYU School of Law supplied arich and perceptive source of legal analysis. SamanthaSanchez at the National Institute for the Study of Moneyin State Politics oversaw the construction of databasesand performed the data analysis key to understanding thedefining realities of money in judicial campaigns.Certainly Public Campaign in its role as national advocateof meaningful campaign finance reform has produced aninvaluable storehouse of compelling research and argument.And, a growing coast-to-coast network of state-basedorganizations has contributed a wide array of experience,studies and analysis that is fueling a rising publicclamor for public financing of judicial campaigns.

Winnett HagensAssociate Director, Democracy South


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Documents

Georgia Legislators’ Guide...Georgia VOTE, Georgia Legislators’ Guide to Public Financing of Judicial Campaigns “The law makes a promise— neutrality. If the promise gets broken,