Campaign Contributions and Judicial Decisions in Partisan and Nonpartisan Elections
The days of judicial elections being low-salience, sleepy affairs has long passed. In recent years, candidates for judicial office have spent increasingly large sums of money to win elective office. These circumstances led former Solicitor General Ted Olson to refer to judicial fundraising as a “financial arms race” (Biskupic 2009).
Examples of the rising costs of judicial campaigns are abundant. Like contributions to campaigns for other offices, rising costs are tied to efforts to mobilize voters and to fund increasingly expensive advertising campaigns. The result of states using both partisan and nonpartisan judicial elections has been the emergence of increased electoral competition between judicial candidates. Relating to the expense of judicial elections, research shows that the costs of judicial campaigns almost doubled between 1990 and 2004 (Bonneau and Hall 2009). While judicial campaigns in a few states remain low-key affairs, for most states the difference between a generation ago and today represents a stark contrast. To survive a judicial campaign and to pay for expensive television and print ads, judicial candidates now raise considerable amounts of money from larger groups of contributors.
Among contributors, however, the rising tide of judicial campaign costs has not displaced the traditional role of attorneys. Recent studies report that attorneys provide more than a quarter of judicial campaign contributions, with pronounced variation throughout the states (Goldberg et al. 2005). As those familiar with judges, candidates, and a state’s judicial system, attorneys likely donate money to create access between themselves, their firm, and their state’s judges (Bonneau et al. 2010). Responding to the expense of judicial campaigns, attorneys in all likelihood seek to remain on even footing with their competition. While evidence of judicial responsiveness has been difficult to consistently uncover (see Cann 2007), the correlation between attorneys and judicial decisions has emerged in several studies (Cann 2007; Champagne 1988; Waltenburg and Lopeman 2000). For attorneys in this period of costly judicial elections, activity in campaigns likely symbolizes concern about the balance between success and failure in the courtroom.
Regarding the costs of judicial campaigns, some scholars have noted the possible benefits of greater campaign spending in judicial elections. One study suggests that voter participation in judicial elections increases as spending increases (Hall and Bonneau 2008), while another shows that these vigorous, expensive campaigns serve to inform voters (Hojnacki and Baum 1992). Nevertheless, there is some evidence that the campaign spending in these elections may diminish the legitimacy of state high courts (Cann and Yates 2008; Gibson 2008; but see Gibson et al. 2011). This is likely, at least in part, because of the appearance of quid pro quo exchanges between judges and the individuals who support their campaigns.
A national survey conducted in 2004 by the Justice at Stake Campaign found that 71% of citizens believe that judicial decisions are influenced in some measure by campaign contributions; these high levels of concern among citizens have been confirmed by other scholars (Geyh 2001; Schotland 2001). While citizens’ perceptions of courts are important in their own right, we contend that the relationship between dollars and decisions is fundamentally an empirical question, albeit one that proves difficult to answer. This difficulty springs from three primary sources. First, the scope of state judicial systems is broad. The 22 state high courts that select judges by competitive election hear thousands of cases each year. Moreover, campaign finance records reveal that the justices who staff these courts received contributions from tens of thousands of donors, making nationwide data collection a daunting task. Second, the system is no less diverse than it is broad. Some elective states use partisan elections while others employ nonpartisan selection methods. Some state high court justices are elected from districts that constitute only a portion of their state’s geography while judges in other states are elected statewide. Term lengths and the requirements for office vary across states, as do procedures for case flow and standards of judicial conduct. Any number of these nuances of state justice systems could amplify, attenuate, or even preclude a hypothesized relationship between campaign contributions and judicial decision-making. As such, studies that seek to reduce the data collection efforts by limiting their investigation to a single state will have results that are fundamentally non-generalizable.
Perhaps it is the third problem, which we refer to as the problem of reciprocal causality, that has proven the most vexing to scholars. While it is possible that the campaign contributions cause judges to support their benefactors’ preferred positions, it is equally plausible that donors simply give to judges who are already ideologically disposed to rule in the contributor’s favor. Either of these situations is enough to generate a correlation between contributions and judges’ decisions, but the presence of both possibilities makes it more difficult to define the direction of causality. This problem has been eloquently stated by Madhavi McCall (2008) as a question of whether “decisions follow dollars” or “dollars follow decisions.” Even if scholars are able to overcome the sizable obstacles of data collection, even for a single state, they must also address the chicken-and-egg problem of whether contributions drive decisions or if the propensity to decide cases in a particular way attracts contributions in order to make a compelling empirical case for the quid pro quo hypothesis.
One approach to resolving these issues involves an instrumental variables statistical approach (e.g. Cann 2007). While potentially useful, that approach requires finding a variable that can be assumed to be related to campaign contributions but unrelated to judges’ decisions, a non-trivial problem. We proceed here with a different, but analytically similar, approach, comparing judges’ votes and behavior in cases where campaign contributions are present and in cases where they are not.
We first review existing literature on contributions and state high court judges’ decisions and then move to three different tests that suggest that in some circumstances, the causal arrow runs from dollars to decisions rather than a judge’s propensity to decide in a particular direction causing him/her to attract contributions from donors of a particular ideological bent.
Campaign Contributions and Judicial Decisions
Naturally, we are not the first to consider the relationship between campaign contributions and state supreme court decision-making. One can classify existing empirical studies into several groups based on the nature of the evidence they use to assess the contributions–decisions link. The first set of studies simply shows that campaign contributors frequently appear in the courtroom before the very judges to whom they contributed (Dubois 1986; Hansen 1991). While the actual parties to the case generally do not know in advance that they are likely to have a case before their state high courts, attorneys can typically predict whether they are likely to face a judge during the course of her term, making attorneys (rather than parties to cases) the more likely entity to enter quid pro quo exchanges with judges. While it is true that a substantial percentage of state high court cases involve at least one attorney who contributed to at least one of the judges, the possibility (or even the appearance) of impropriety is not sufficient to show an actual association between contributions and decisions.
A second group of studies strives to provide evidence of a correlation between contributions and decisions. Some of these studies rely primarily on anecdotal evidence. For example, Anthony Champagne (1988) evaluates actions taken by the Texas Commission on Judicial Conduct in cases involving attorneys who had given money or gifts to two state supreme court justices. While such instances are a matter of concern, they by no means demonstrate a widespread influence of money in state courts. Other studies in this vein use larger-scale data collection efforts. For example, Stephen Ware (1999) evaluates the outcomes of arbitration decisions from the Alabama Supreme Court, finding a correlation between judges’ funding sources and their rulings. Several other studies show a correlation between campaign contributions and the decisions of judges in the Texas Supreme Court (McCall 2008; McCall and McCall 2006). Still other studies find evidence of a correlation between contributions and decisions in Kentucky, Ohio, and Alabama (Waltenburg and Lopeman 2000), but not in Wisconsin (Cann 2002). While these studies are interesting, they still fall victim, in varying degrees, to the three major obstacles we outlined above that have prohibited scholars from convincingly establishing a causal relationship between contributions and decision-making. With one exception, these studies consider only a single court. While this decision is typically made out of convenience, single-state studies neglect the nuances of interstate institutional variation that could be consequential for the relationship between contributions and decisions. More critically, while the establishment of no correlation rules out the possibility of causality, the studies that find a correlation are unable to demonstrate the direction of causality.
A final group of studies uses aforementioned instrumental variables statistical techniques in an attempt to resolve the vexing problem of causality. One study argues for the use of an instrumental variables probit model, an advanced statistical technique designed to obtain consistent estimates of the effects of variables in reciprocal causality situations (Cann 2007). Applying this method to three state high courts, Bonneau and Cann (2009) find preliminary evidence of a causal effect in some state high courts.
While we applaud the recent advanced statistical efforts as a means of circumventing the reciprocal causality problem, the major drawback of such an approach is that the results are opaque to individuals without advanced statistical training. Moreover, they require the identification of variables that can be reasonably assumed to be correlated with campaign contributions but unrelated to judges’ decisions, and it is difficult to assess the validity of that assumption. While we see this sophisticated quantitative work as being useful, in this chapter we discuss several alternative approaches that, while quantitative in nature, are still intuitive and accessible for a broader audience. We present here results of a pilot study of campaign contributions and judicial decisions in three state high courts. While the results are not definitive, we discuss three “suggestive” tests that, when taken together, represent a credible effort to overcome the three major hurdles to a conclusion on the nature of the link between campaign contributions and judicial decisions we outlined above.
General Framework for the Study
As part of an ongoing project, we have gathered data on decisions during the 2005 term of three state supreme courts: Nevada, Texas, and Michigan. The states are diverse on a number of characteristics, including size of the court, partisan vs. nonpartisan selection of judges, term length, and region. Additionally, our data balance two states where the contributions and decision-making link has not been studied in detail (Michigan and Nevada) with a state that has been the subject of much study (Texas). Collecting data on three states is not a perfect resolution to the problem of the scope of data collection; it represents only a fraction of states that select judges in competitive elections. Nevertheless, this approach represents an improvement over studies that consider this question in a single state.