Last Friday the West Virginia Supreme Court stopped Allan Loughry, a candidate for the West Virginia supreme court, from receiving additional public funding — funding that was triggered after the campaign expenditures of Mr. Loughrey’s opponent, Justice Robin Davis, crossed a certain threshold. The court found, in part, that because Mr. Laughrey’s additional public funding could neutralize Justice Davis’s campaign expenditures, the funds would violate Justice Davis’s political speech rights. The court’s decision was drawn from a 2010 U.S. Supreme Court case, which used the same reasoning to strike down a similar financing system in Arizona. Despite this, the New York Times wanted the West Virginia supreme court to dismiss this precedent, because it “did not deal with judicial contests, which raise concerns about preserving judicial fairness in the face of heavy election spending. . . .Preserving public confidence in the impartiality of the judiciary is essential. “
I see this myth — that judicial elections undermine a fair judiciary and reduce the trust in our judicial branch — parroted by the mainstream media all the time, regardless of contrary evidence. As I’ve said before, if money had a perverse impact on the judiciary, I might think twice about money in judicial elections. But, there is just not enough empirical evidence to support this thesis, and if anything, judicial elections can actually be a positive force.
Part of the judicial fairness concern stems from the fear of money buying favorable judicial outcomes. There is an obvious remedy to concerns about undue influence — recusal. But despite this obvious solution, is justice for sale? Professor Bonneau asks this question, and finds that although some studies — but not others — point to a correlation between campaign donations and favorable judicial outcomes, proving causality is very difficult. What if the correlation comes from liberal donors giving to liberal judges, and business-friendly donors gives to business-friendly judges? Professor Bonneau concludes that, “based on the existing empirical evidence, one cannot look at the existing evidence . . . and conclude that justice is for sale.”
Not surprisingly, the New York Times also ignores the benefits of heavy spending in judicial elections. Professor Bonneau explains that far more citizens vote in expensive races, and “campaign spending actually benefits voters by allowing candidates to run a vigorous campaign and make their case to the voter.”
Elections by themselves seem to generate more support for the judiciary; these data do suggest that courts do in fact profit to some degree from their periodic encounters with voters. At the same time, however, the positive effect of elections is dampened by the campaign ads that associate courts with ordinary voters. The effect is not great, and not great enough to neutralize entirely the positive consequences of exposure to the judiciary.
Professor Bonneau concludes:
The net effects of elections are positive. Elections serve to enhance the legitimacy of the office. Given the experimental design of this study, this finding is quite robust and persuasive. That being said, it is only based on one state. Future research examining this at the national level is needed before we can be completely convinced that this is generalizable. Minimally, though, it suggests we need to rethink the conventional wisdom about the relationship between elections and legitimacy. Judicial elections may, in fact, enhance the legitimacy of courts.
Underlying the New York Times’ argument is that public financing for judicial elections is a panacea destined to remedy some of the (supposed) problems with judicial elections. However, as Professor Bonneau points out, designing a sustainable public-financing system is very difficult. Think about it. A workable public-financing system must offer enough funding to persuade candidates — especially challengers, who have higher fundraising needs — to opt-in. When budget-crunched states must choose what services to cut, the choice will be easy — cut the funding that is going toward TV ads! Accordingly, very few candidates will participate, thus neutralizing the program’s supposed benefits.
I suspect that the real reason that the New York Times is aiming its fire at judicial elections is to replace them with George Soros’s favorite judicial selection method — the trial-lawyer dominated Missouri Plan. The West Virginia supreme court deserves praise for ignoring the lobbying efforts of the New York Times, adhering to U.S. Supreme Court precedent instead.