Campaign contributions, judicial decisions, and the Texas Supreme Court Assessing the appearance of impropriety

Judicature

Volumn 90, Issue 5, 2007, Pages 214-225

  McCall, Madhavi M ^a   McCall, Michael A ^a  

^a SAN DIEGO STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34249743598     PISSN: 00225800     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (36)

1. For a summary of the literature regarding state court judicial elections, the problems associated with raising monies, and arguments regarding the ethical problems contributions might poise, and discussion of empirical work on state supreme courts, see Roy Schotland, Financing Judicial Elections, 2000: Change and Challenge, 2001 LAW REV. MICH. ST. U. - Det. C.L 849 (2001),
2. Anthony Champagne, National Summit on Improving Judicial Selection: Interest Groups and Judicial Elections, 34 LOY. L.A. L. REV. 1391 (2001),
3. and Madhavi McCall, Campaign Contributions and Judicial Decisions: Can Justice be Bought? 22 AM. REV. OF POL. 349-374 (2001).
4. But see Madhavi McCall, The Politics of Judicial Elections: The Influence of Campaign Contributions on the Voting Patterns of Texas Supreme Court Justices, 1994-1997, 31 POL. AND POL'Y 314-346 (2003)
5. and Eric Waltenburg and Charles Lopeman, Tort Decisions and Campaign Dollars, 28 SOUTHEASTERN POL. REV. 241-263 (2000).
6. A few clarifications regarding our research methods seems warranted. First, we code cases decided in favor of the original plaintiff (e.g., an individual) as liberal and cases for the original defendant (e.g., large business) as conservative. Second, we study only seven of the nine justices serving between 1994 and 1997 due to incomplete contribution information for two justices. The seven justices examined are all highly conservative. Six of the seven are Republicans and all justices are heavily supported by civil defense lawyers. Finally, contribution information was originally obtained by Texans for Public Justice. See Texans for Public Justice, Payola Justice (1998), available at www.tpj.org/reports/payola/summary.html.
7. Erwin Chemerinsky, Preserving an Independent Judiciary: The Need for Contribution and Expenditure Limits in Judicial Elections, 74 CHI.-KENT L. REV. 133, 138 (1998). While our research design might mitigate some of Chemerinsky's concerns, we do not consider the magnitude of contributions and this hinders analysis. Moreover, we are unable to verify if these observed patterns can be extended to more liberal judges, to judges in other states, or for other time frames. The methods used assume that judicial decisions flow in part from dollars, though admittedly, more extensive modeling of the phenomenon observed here are needed to substantiate directionality.
8. See Anthony Champagne, Access to Justice: Can Business Co-Exist with the Civil Justice System? Tort Reform and Judicial Selection, 38 LOY. L.A. L. RKV. 1483 (2005) for a discussion of the problems determining if dollars follow decisions or decisions follow dollars.
9. See supra n. 1.
10. Kyle Cheek and Anthony Champagne, Money in Texas Supreme Court elections, 1980-1998, 84 JUDICATURE 20 (2000).
11. Supreme Court of Texas, Judicial Campaign Finance Study Committee, Report and Recommendations, 6-10 (February 23, 1999).
12. Keith Rollin Eakins, Gate-Keeping in the Ohio Supreme Court. University of Central Oklahoma, unpublished manuscript (1999).
13. But see supra n. 2.
14. Champagne, supra n. 4.
15. Neil Lewis, Gifts in State Judicial Races Are Up Sharply, N.Y. Times, February 14, 2002, at A2.
16. Supra n. 6.
17. See Champagne, supra n. 1.
18. Dick Kimmins, Judges' Races Targeted, Cincinnati Enquirer, January 17, 1995, at B1.
19. Supra n. 7.
20. Such perceptions seemingly prompted United States Supreme Court Justices Kennedy and Breyer, in a November 23, 1999 interview with Frontline's Bill Moyers, to speak out against judicial elections and campaign contributions.
21. See Justice for Sale, at http://www.pbs.org/wgbh/pages/frontline/ shows/justice/interviews/supremo.htm for a text version of the interview. Justices Sandra Day O'Connor and Antonio Scalia also participated in a round table discussion on judicial elections in the Fred Friendly Lecture Series entitled "Ethics in America: Elections and Judicial Independence" that originally aired 2/28/2007, available at www.fredfriendly.org.
22. Eakins, supra n. 8.
23. Texans for Public Justice, Pay to Play (2001), available at http://www.tpj.org/reports/paytoplay and Texans for Public Justice, supra n. 3.
24. Stephen Ware, Money, Politics and Judicial Decisions: A Case Study of Arbitration Law in Alabama, 15 J. OF L. AND POL. 645 (1999).
25. Waltenburg and Lopeman, supra n. 2.
26. McCall, supra nn. 1 and 2.
27. All the information regarding the history of the Texas courts from this introductory section are adapted from Anthony Champagne and Kyle Cheek, Judicial Independence: The Cycle of Judicial Elections: Texas as a Case Study, 29 FORDHAM URB. L. J. 907 (2002).
28. There were missing data for 6 votes and those votes are not used, leaving 2196 votes for which basic contribution analysis could be conducted. Some of the analysis that split the data set by groups included a lower number of cases due to missing information in specific cells. Of the original 2202 votes, 1283 dealt with an individual suing a business, 270 with a small business suing a much larger corporate entity, 21 with a larger business suing a smaller business, 549 with the state suing a business for faulty business practices, and the remaining 79 with individuals suing individuals.
29. Melinda Gann Hall and Paul Brace, Order in the Courts: A Neo-Institutional Approach to Judicial Consensus, 42 W. POL. Q. 391407 (1989). While we examine the possibility here that judicial decisions differ as a response to the electorate policy positions, other authors posit that justices signal to contributors their policy positions and thus signal their contribution "worthiness." While the possibility thatjustices might signal to their contributors that the justices are worth supporting exists, we do not examine this possibility.
30. See Jason Czarnezki, Voting and Electoral Politics in the Wisconsin Supreme Court, 87 MARQ. L REV. 323 (2003) for a discussion of how justices might alter behavior to garner the votes of the electorate, especially as the election approaches.
31. See Schotland, supra n. 1, at 849
32. and Champagne, supra n. 4 for a discussion of the ways in which justices signal their policy positions to contributors and how this behavior might become clearer as an election approaches.
33. Roy Schotland, Kyle Cheek, and Anthony Champagne, Estimating the Impact of Campaign Donations on Judicial Decisions, University of Texas at Dallas, Manuscript on file with authors (2000) at 10.
34. We also consider the relationship between contributions by either lawyer or litigant (as opposed to dividing up the contributions) to a judge and present the information in Table 1 (see rows three and six). The results indicate that contributions by either lawyer or litigant to a judge and voting for that litigant are fairly similar to those votes that only consider lawyer votes.
35. As noted, the data used here do not allow for analysis of the magnitude of the contribution. For a study specifically addressing the relative magnitude of contributions, see McCall, supra n. 2.
36. Because there were so few instances in which the plaintiff actually contributed to a judicial campaign, we reviewed the cases and verified that the plaintiff is the individual, smaller business, or state to justify liberal position classification. In all but one plaintiff vote, the plaintiff represented the liberal position.