INSIDE TAKE: End the Judicial Fundraising Charade

(Editor’s note: This is an opinion column from a Citified insider.)

It’s a part of the campaign process which gives many a sense of the oogies; the relentless quest for cash in which candidates for office call their friends, colleagues, former colleagues, ideological sympathizers, anyone who’s given money to people like them, anyone who might have a beef with the other candidates, and then, inevitably, all these same people again next week.

It’s especially uncomfortable when it comes to candidates for judicial office, because judges are supposed to be impartial, and as the U.S. Court of Appeals explained in 1991:

It is no secret that aside from family and close personal friends of the candidate (rarely affluent, or necessarily enthusiastic sources) judicial campaigns must focus their solicitations for funds on members of the bar. This leads to the unseemly situation in which judges preside over cases in which the parties are represented by counsel who have contributed in varying amounts to the judicial campaigns.

Pennsylvania, like most states which elect judges, tries to take some of the ickiness out of the process by preventing judges (and judicial candidates, but I’ll just say “judges” from here) from raising the money themselves. The Rules of Judicial Conduct expressly prohibit such personal solicitations; money can only be raised by members of the judge’s campaign committee instead.

In practice, however, the phone calls go like this:

Candidate: “Hi, Dan. I’m running again for judge.”

Dan: “That’s great.”

Candidate: [Blah blah blah qualifications, vague platitudes about “justice” and faithfulness to the Constitution, since they can’t speak about how they’d actually rule on cases.]

Dan: “I think you’re a fantastic judge.”

Candidate: “Can I count on your support?”

Dan: “Absolutely.”

Candidate: “Great. Let me hand the phone over to Abby, who can tell you more about that.”

Abby: “Do you have a credit card handy?”

The process lends the fundraising process a thin veneer of plausible deniability. Despite being a step removed from the contribution, judges can still be intimately involved the whole time. They can attend fundraising events in their honor, and personally thank their supporters thereafter. Indeed, state law requires judges to certify their campaign finance reports, so they are required to know who their supporters are and the amounts of their contributions. If a judge finds this all repugnant, too bad: no money, no gavel.

This morning, The Supreme Court of the United States is hearing a case seeking to strike down state bans on direct judicial fundraising, on the grounds that they violate the First Amendment rights of judicial candidates. Given how many campaign finance reform laws the Roberts Court has already struck down, it seems inevitable that these laws, too, will fall. They should.

To be fair, those defending such bans point out some of the messy and potentially coercive situations which can occur without the ban. As a brief filed by some former state chief justices recounts:

A judge directly emailed a small group of partners at a prominent firm within the State, detailed the contributions made by other firms (“all the Top 10 firms are committed to maxing out as a firm: $30,000 total”), and requested that their firm “do the same,” explaining that “[a]t most of the firms, they are designating a senior partner . . . to bundle dozens of relatively small-$ contributions . . . until they reach the target,” and promising “Bottomless thanks!”

And maybe it’s true, as they later argue, that “when contributions are solicited and received by a candidate’s committee, it is much easier to either disregard the request or say ‘no.’”

But this doesn’t, as the Florida Bar argues, avoid “the potential for quid pro quo corruption and the appearance of corruption by breaking the direct link between contributors and judicial candidates.” It just adds one more link to the chain.
In the end, the problem isn’t so much with who’s making the ask as with its very existence. There is no system in which attorneys and parties are funding the campaigns of the judges before whom they will appear which will be free from the potential for corruption.

So rather than fake reform, let’s demand real reform. Pennsylvania could choose to take the money out of the election process by joining New Mexico and West Virginia in making voluntary public financing available for public elections, so that qualified candidates for judicial office can opt out of the solicitation game altogether. At a minimum, we could place dollar limits on contributions to judicial candidates.

Alternatively, just end the partisan judicial election process altogether. For years, Pennsylvanians for Modern Courts has led the fight to bring merit selection to our state’s judiciary, so that our judges could be considered, nominated, and confirmed, rather than elected. Merit selection promises to bring a more professional, qualified bench, and potentially solves more problems beyond the fundraising issues.

Merit selection would restore some dignity to this process while, admittedly, giving me a lot less to do this time of year. It’s worth pursuing.

Adam Bonin is a lawyer specializing in political law. His clients include candidates for judicial office in 2015, but these are his thoughts, not theirs. You can follow him on Twitter at @adambonin.