By ADAM COHEN
The Occupy Wall Street movement is shining a spotlight on how much influence big-money interests have with the White House and Congress. But people are not talking about how big money is also increasingly getting its way with the courts, which is too bad. It's a scandal that needs more attention. A blistering new report details how big business and corporate lobbyists are pouring money into state judicial elections across the country and packing the courts with judges who put special interests ahead of the public interest.
A case in point: West Virginia. In 2007, the West Virginia Supreme Court, on a 3-2 vote, threw out a $50 million damage award against the owner of a coal company. Funny thing: the man who would have had to pay the $50 million had spent $3 million to help elect the justice who cast the deciding vote. The West Virginia ruling was so outrageous that in 2009 the United States Supreme Court overturned it. But that was unusual. In most cases, judges are free to decide cases involving individuals and groups that have paid big money to get them elected. (MORE: Justice on Display: Should Judges Deliberate in Public?)
So who is paying? The new study — by New York University Law School's Brennan Center for Justice, the National Institute on Money in State Politics, and the Justice at Stake Campaign, a non-partisan reform group — found that a small group of super spenders plays the biggest role, using their money to buy the kind of judges they want hearing their cases. These super spenders are the usual suspects: mainly big business, corporate lobbyists, and trial lawyers. Also high on the list: a disturbing category called "unknown." In many states, disclosure laws are so weak that special interests can buy judicial elections without the public even finding out.
There is also a lot of one-issue money sloshing around. In 2010, three Iowa Supreme Court justices who ruled in favor of gay marriage were voted out of office — after a bitterly fought campaign dominated by money from out-of-state groups like the National Organization for Marriage and the American Family Association. Much of the special interest money is used for attack ads, which leverage hot-button issues to demonize judicial candidates. Has a sitting judge ever reversed a criminal conviction because the law was not followed? Then they must be soft on crime — and not care about victims.
Why does all this matter? Because as money floods into judicial elections, we are getting courts that are filled with judges whose first loyalty is not to justice — or to the general public — but to insurance companies, big business and other special interests. It's not hard to guess what insurance companies want their judges to do. They want them to rule against people who have been injured — even when they deserve compensation, and they want damage awards to be slashed. Big business wants weak enforcement of laws against discrimination and pollution. On the other side of the political spectrum, trial lawyers want verdicts for plaintiffs — and large damage awards.
The report's authors have some suggestions for minimizing the impact of payola. They want to see more public financing of judicial campaigns, although it is unclear how much the current United States Supreme Court will allow. (The conservative majority has been recklessly striking down campaign finance rules in recent years.) Many reformers think that the answer lies in ending the direct election of judges, and switching to a system (which some states already have) of appointing judges. That takes away the problem of elections, but special interests can shift their strategy to lobbying governors to appoint sympathetic judges. (MORE: John Paul Stevens Publishes Supreme Court Memoir)
Clearly, this is not a problem with easy solutions. But there need to be solutions. The American ideal of justice requires neutral judges, whose only commitment is to the law. Judicial elections that are dominated by special interest money make a mockery of that ideal.
Cohen, the author of Nothing to Fear, teaches at Yale Law School ...