TALKING POINTS ON CAMPAIGN FINANCE REFORM
Prepared By:
Charlie Wiggins, President-Elect, Washington Chapter, American Judicature Society
Prior Draft Submitted to Judicial Selection Coalition, 1/6/2005
In judicial races, unlike executive and legislative races, there are no limits on campaign contributions:
Washington’s campaign finance laws apply to selected state officials, but not to judicial positions[FN1]. Thus, judicial elections are not subject to the normal limitation that most contributors - including individuals, PACs, unions and businesses - may not give a statewide executive office candidate more than $1,350 per election or a Legislative candidate more than $675 per election.
The exclusion of judicial office from campaign finance limits undermines the intent of the people exercised in the initiative process to limit the influence of large contributors and special interest groups:
By limiting campaign contributions, the people intend to:
- Ensure that individuals and interest groups have fair and equal opportunity to influence elective and governmental processes;
- Reduce the influence of large organizational contributors; and
- Restore public trust in governmental institutions and the electoral process[FN2].
The lack of any control over judicial campaign contributions undermines confidence in the courts:
It is ironic that judges, of all state officials, are immunized from campaign contribution limits. Legislators and executive officers are expected to have an agenda and an ideology, but judges are required to administer the law impartially and independently. Large campaign contributions from special interest groups undermine the public confidence in the judiciary that is essential to the credibility of the courts.
Nearly 71% of Americans believe that campaign contributions have at least some influence on judicial decisions, according to a nationwide survey of 1,204 adult Americans conducted March 17-19, 2004, by Zogby International for the Justice at Stake Campaign. An even higher percentage of African-Americans—80%--hold this belief, of whom 51% believe that contributions carry a great deal of influence.
Washington is one of only four states that elect judges but have no campaign finance limits.
Washington’s failure to impose limits on judicial campaign contributions places it in a small minority[FN3]. Only four states that elect judges have no campaign finance limits[FN4]. Four other states have modest limits, limiting only contributions from corporations, labor unions, political parties, or PACs[FN5]. Four states have no limits on campaign contributions, but they only hold retention elections, not general elections; judges are initially appointed through merit selection[FN6]. The remaining 38 states either have campaign finance limitations or use a method other than election to select their judges.
Campaign finance limits are recommended by groups that have studied judicial selection.
The Walsh Commission studied judicial selection in Washington in 1995, issuing its report in 1996. The Commission recommended the adoption of campaign finance limits. The Commission also recommended that Washington modify its judicial selection to employ a merit commission for the initial selection of judges.
The American Bar Association issued a comprehensive report on judicial selection in the states in 2003. Like the Walsh Commission, the ABA strongly recommended that judges be selected through a merit commission process, but that if states retained judicial elections, campaign contribution limits should be imposed.
Other studies have concluded that even campaign finance limits are not enough. A New York State Commission issued its recommendation in 2004 that judicial campaigns be publicly financed to remove the taint of special interest money. The state of North Carolina recently adopted public financing of judicial elections.
Money plays an increasingly important role in judicial elections, particularly at the Supreme Court level.
Total spending by all Supreme Court candidates is up 27% from 2000, even though fewer candidates ran this year (12 this year vs. 14 in 2000). Average spending per candidate has increased almost 50% since 2000, and median spending per candidate has doubled since 2000. These increases would be even more dramatic were it not for the fact that one candidate in 2000 contributed $245,000 to his own campaign. The increases in 2002 and 2004 were not funded by a single candidate but by third parties and special interests.
The following chart summarizes the increases in Supreme Court campaign funds since 2000:
| Year |
2004 |
2002 |
2000 |
| Number of candidates |
12 |
9 |
14 |
| Total spending |
$1,216,425.31 |
$805,821.00 |
$955,608.00 |
| Average per candidate |
$101,368.78 |
$89,535.67 |
$68,257.71 |
| Median spending |
$46,235.00 |
$20,465.00 |
$22,765.00 |
Washington’s experience mirrors that of other states that elect their appellate judges. Contributions to judicial campaigns have increased across the country. Preliminary indications are that judicial candidates across the country raised $38 million, up from $29 million in 2002. Final figures may drive the total over the record-breaking $45 million raised in 2000. In ten races across the country, judicial candidate spending topped $1 million. In 2002, the Brennan Center for Justice at NYU School of Law reported that "[w]ith few exceptions, money means victory," noting that the top fundraiser prevailed in 20 of 25 races in 2001-2002 and that in 2002 the candidate who spent the most on TV ads prevailed in 9 of 11 races where TV ads ran. Stateline.org reported in 2004 that "record amounts of money are pouring into state judicial elections, raising concerns that special interests are gaining influence and undermining the impartiality of some of the states' highest courts." Business Week commented in 2004 that "the same bitter polarization that has poisoned Presidential and congressional politics is starting to seep into the one branch of government that is supposed to be immune from it" as "special interests are increasingly turning to the courts to advance goals they can't win legislatively."
The problem with unlimited campaign contributions manifested itself in the 2004 Supreme Court election[FN7]:
The election for Supreme Court Position 1 in 2004 revealed the unequal contest that can result from unlimited campaign contributions. The two candidates who prevailed in the primary were Judge Mary Kay Becker and attorney Jim Johnson. A huge gap opened in fundraising by these two candidates:
| Johnson: |
Cash: |
$495,534 |
| In kind |
$30,405 |
| Total: |
$525,939 |
|
| Becker: |
Cash: |
$136,943 |
| In kind |
$10,184 |
| Total: |
$147,127 |
Thus, Johnson’s campaign had more funds than Judge Becker’s by a ratio of 3.6 to 1.
Johnson’s total contributions of $526,000 are over twice the amount of the most expensive House race ($256,000) and more than the most expensive Senate race ($366,000).
Johnson’s fundraising advantage overwhelmed Judge Becker’s credentials and qualifications. Judge Becker simply lacked the resources to communicate to the voters her excellent credentials, including several terms as a state legislator and ten years as a judge on the Court of Appeals.
None of this is intended to disparage Jim Johnson. He too had impressive qualifications and will probably be a fine Supreme Court justice. But the contest was incredibly lopsided.
Major donors to Jim Johnson campaign:
The disparity between Becker and Johnson’s campaign contributions is even more worrisome because Johnson raised almost half of his support from one industry group, the building industry:
Building Industry Association of Wash. and BIAW
Member Services Corp., cash |
115,000 |
| BIAW, in kind contributions |
25,555 |
| BIAW PACs [FN8] |
55,000 |
| BIAW subtotal |
195,555 |
| Regional PACs known as Affordable Housing Councils [FN9] |
20,250 |
| Construction/realtor organizations giving at least $1000 |
22,050 |
There is presently no law against these substantial contributions to Johnson’s campaign, but such substantial contributions would obviously not be permitted for any other candidate for state office. The BIAW certainly had reason to support Johnson, for he had represented it over the years. But this level of support, even for one’s own lawyer, is unique.
The donation of $112,000 by Cruise Specialists, Inc:
Johnson’s campaign received donations in October and November from Cruise Specialists, Inc. (CSI) totaling $112,000. These donations raise a somewhat different, but equally alarming, issue.
CSI gave no contributions in 2004 to any legislative or executive candidate. The sole contributions by this company were to Jim Johnson’s campaign. Why would this company invest so heavily in Johnson’s campaign?
According to its web site, CSI was founded by Janet Lanterman, who is now its president[FN10]. Janet and Kirk Lanterman were defendants in a lawsuit in King County, in which they were found liable to the plaintiff for approximately $18 million. Kirlan Venture Capital v. Regis, King County Cause No. 00-2-14333-8 SEA. The judgment was affirmed by the Court of Appeals in a decision written by Judge Becker.
It can’t be said for certain that the Lantermans gave $112,000 in order to defeat the judge who had affirmed a major jury verdict against them. But it is the case that these are the only contributions by this company in 2004 and that the contributions were made after the primary when it was clear that Judge Becker would face Johnson in the general election.
The CSI contributions send a chilling message to judges who must decide cases involving wealthy litigants. They illustrate the possibility that a disgruntled litigant can target a sitting judge. Campaign finance limits should be extended to judicial races for this reason if for no other. Judges must be insulated from the threat of overwhelming campaign contributions to their opponent as a method of revenge.
- RCW 42.17.020(39) defines “state office” to mean “state legislative office or the office of governor, lieutenant governor, secretary of state, attorney general, commissioner of public lands, insurance commissioner, superintendent of public instruction, state auditor, or state treasurer.” Judges are omitted from the list.
- RCW 42.17.620.
- Source of information: http://www.ajs.org/js/select.htm, accessed 12/31/2004.
- Illinois, Minnesota, Oregon and Washington.
- Alabama, Indiana, North Dakota, and Pennsylvannia.
- Colorado, Nebraska, New Mexico, and Utah.
- All statistics come from PDC records available online accessed 12/31/2004.
- ChangePAC 2004, It’s Time for a Change PAC, Wash. Affordable Housing Council. These PACs have the same address as BIAW and their treasurer is a registered BIAW lobbyist. BIAW gave $455,000 to ChangePAC, which in turn gave $875,000 to It’s Time for a Change PAC.
- Affordable Housing Council, Affordable Housing Council of Kitsap, North Central Affordable Housing Council, Tri-Cities Housing Council.
- http://www.csiseattle.com/crew.htm, accessed 1/1/2005.
