From Volume 86, Number 6 (September 2013)
Money buys things. This is the worry about money in judicial elections. As campaign spending in judicial elections has rapidly ramped up, there is increasing concern that judicial elections now have become “floating auctions” in which contributors purchase favorable judicial treatment in exchange for campaign financing. For sitting judges, the prospective need for money to finance their re-election looms over judicial decisionmaking and tempts them to decide cases in ways that attract, or at worst would not alienate, prospective contributors. Even the Supreme Court, which has hardly demonstrated great concern about campaign finance, recognized for the first time the potential for actual bias from big-money campaign spending in state judicial elections in Caperton v. A.T. Massey Coal Co.
What is regularly missed in this story of modern judicial campaign finance, however, is that the Republican and Democratic Parties play an indispensable role in the influence of money on judicial decisionmaking. The intuitive understanding of judicial campaign finance as a direct exchange of money for influence between individual contributors and candidates is too simplistic to capture the larger realities of modern judicial elections. Of course, there is a very real relationship between contributions to judges and judicial decisions by those judges favorable to their contributors that we ourselves have helped document. However, in the modern world of judicial campaign finance, the Republican and Democratic Parties broker the powerful relationships between contributors and candidates, particularly in partisan elections where their involvement is greatest.