Judges for Sale… Legally

After the 2010 Citizens United case was handed down by the U.S. Supreme Court, the Montana Supreme Court, responding to a suggestion from Citizens that they did not see how allowing unions, businesses and mega-wealthy players to have open-ended right to express political views on issues or candidates could be seen as corrupting, issued ruling that addressed that notion of corruptibility.  The Montana justices ruled that given the small population of their state and the very limited reach of mass media (TV, radio, newspapers, etc.), it was too easy for a small coterie of biased wealthy influencers to “buy” public opinion in that state rather inexpensively. In the early summer of 2012, the U.S. Supreme Court reversed that state court ruling, without explanation other than citing Citizens United, in a 5-4 decision.

I’ve already blogged about corporate interests buying state judicial races where judges are forced into public elections (Austin-tacious, November 1^st), where it pretty obvious that these courts will rule on cases involving these same wealthy donors sooner or later. And it is equally clear that the smaller the ad market in any one state might be, the easier it is for a wealthy donor to capture all if not most of the available ad inventory during an election. Montana, with about a million people, is one heck of a lot cheaper to buy than, say, massive California with 37 million, even though both states produce two elected U.S. Senators. And grabbing the top justices who control legal interpretation and appeals in these smaller states is equally facile if someone cares enough.

Take the conservative movement that is uncomfortable with state supreme courts with appointees from Democratic administrations. Once again… like Montana. Like the case in the recent election of a justice appointed by a Democratic governor.

“Mr. [Mike] Wheat, a State Supreme Court justice [is] running in the most expensive judicial race on record in Montana. In a parade of menacing television ads paid for by conservative groups, he has been attacked for ‘a history of supporting extreme partisan measures’ (voting to raise fees on hunting licenses), and for allowing convicted criminals to use legal ‘loopholes’ to go free. On the other side, unions and trial lawyers have accused his opponent, Lawrence VanDyke, of being “in the pocket” of out-of-state ‘special interests.’

“When Justice Wheat, 66, decided to run for another eight-year term on the court, he said, ‘I never really anticipated that I would end up with a race like this. I never thought it would turn into this gigantic money battle.’

“But judicial races have been evolving into another political battleground for big money. A last-minute surge of spending brought the total spent on television commercials to $12.1 million in 10 states, according to two groups that track judicial campaign spending. This election cycle, the spending race has been fueled by the Republican State Leadership Committee, which pledged to spend $5 million on a ‘judicial fairness initiative,’  and contributed $400,000 in North Carolina [in the week before the mid-terms].” New York Times, November 2^nd. The money mostly isn’t even being generated from within the states where the justices are running. It’s just outside big money looking at the states with the least expensive cost of media penetration where there are candidates who could possibly prevail with a point of view that defies these contributors’ agendas.

Given the small nature of some of these markets, and comparing the cost to other statewide offices, the money being spent is downright terrifying, even though voters appear to be skeptical of these well-funded attacks on their judiciary. “In the one election that has already taken place, in August, conservative efforts were unsuccessful. Despite spending more than $500,000 to unseat three justices, Tennessee voters retained them.

“In Montana, independent conservative groups have spent about $640,000 — $469,000 by a political action committee financed by the Republican State Leadership Committee and $170,000 by Americans for Prosperity, the conservative group backed by the brothers David H. and Charles G. Koch, according to figures provided by the Brennan Center for Justice in New York and Americans for Prosperity.

“In response, a political action committee financed largely by Montana trial lawyers and unions has spent $475,000. The money dwarfs what the candidates have raised under Montana’s strict individual contribution limit of $320: $132,000 for Mr. VanDyke and $143,000 for Justice Wheat, according to the most recent campaign filings.” NY Times. In the end, Mike Wheat kept his job.

What is fascinating is how these same actions in so many other Western countries would be viewed as simple bribery and corruption of judges. People would go to jail for making the “donations” as would the judges who benefited. Instead, the United States Supreme Court has given those who are trying to use the payment of unsupervised and uncontrolled large sums of money to benefit their candidates and defeat judges who might rule against them or their causes a “get out of jail free” card. Try and find better evidence that the United States has become a plutocracy, although the litany of examples is quite abundant.

I’m Peter Dekom, and creating the “aura of legality” towards a practice most countries would consider bribery does not make that practice any less corrupting.