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Want to buy a judicial election? Few states have strong rules to stop you, report finds

A 2011 ad against Wisconsin Supreme Court Justice David Prosser. More than $5 million was spent during the 2011-2012 high court election cycle in Wisconsin, making it the second most-expensive state. (Screenshot/FairCourtsPage/YouTube)

As more and more cash floods judicial elections across the country, few states have adequate ethical rules for handling the influence of such spending, according to a new report.

Of the 39 states where judges are elected, just five earned passing scores on how they handled conflicts of interest created by campaign contributions, according to the report from the liberal Center for American Progress.

Just a few states require a judge to recuse himself from a case involving one of his campaign donors, but most simply leave that decision up to the judge himself. The best-performing state, California, earned a C grade—75 points—on the set of ethical rules governing such conflicts. Georgia and Michigan landed in second place with scores of 70 and Utah and Washington scored 65. 

The hundred points were awarded based on state rules in eight categories, such as whether campaign spending is listed as a basis for a judge recusing himself from a case, whether the decision to be excused from a case is the judge’s alone to make or whether a judge is required to disclose relevant contributions. The scoring was informed by judicial conduct codes and proposals by the American Bar Association, Brennan Center for Justice and other groups advocating for stronger ethical rules.

Judicial races have been undergoing a transformation in recent years.

In the 2011-2012 election cycle, a record $33.7 million was spent on television ads in state Supreme Court races alone. More than $56 million was spent overall in those races, with non-candidate spending accounting for an increasing share of overall campaign cash, according to a report issued by the Brennan Center for Justice, Justice at Stake and the National Institute on Money in State Politics.

(The New Politics of Judicial Elections report)

As spending in such races rises, so too does a court’s likelihood of ruling for the state (and against often soundbite-unfriendly defendants), CAP has found. And spending in judicial races is likely to rise.

Just last week, a conservative group, the Republican State Leadership Committee, said it was launching the “Judicial Fairness Initiative,” a project that would back conservative judicial candidates. The group said it would help coordinate resources between candidates and party committees and help contact voters on behalf of candidates. The RSLC has already begun spending in North Carolina, a state that scored just 35 points in CAP’s report on spending in judicial elections.

That state was far from alone in having such a low score. Nebraska, Ohio, Texas and Wisconsin each also scored a 35. Indiana and Maryland scored 30. Idaho scored a lowly 15.

In Wisconsin, the second-most expensive state in the 2011-2012 high court cycle, the judicial code of conduct explicitly states that judges are not required to recuse themselves in cases involving campaign contributors. In comments accompanying that rule, implemented in 2010, the state Supreme Court explained its logic: it would create the impression that judges are necessarily susceptible to the influence of campaign contributions.

“Disqualifying a judge from participating in a proceeding solely because the judge’s campaign committee received a lawful contribution would create the impression that receipt of a contribution automatically impairs the judge’s integrity,” the majority’s comments read.

When the rule was implemented, Justice Ann Walsh Bradley issued a harsh dissent of the rule, which she said “adopts word-for-word the script of special interests,” namely the Wisconsin Realtors Association and the Wisconsin Manufacturers & Commerce, the latter of which spent more than $900,000 on judicial campaign contributions in 2011.

“For the almost fifteen years that I have been on this court, there has never been a major rules petition that has been adopted without study, discussion, or further input,” she wrote. “Never, until now.”

Read more:

CAP’s report grading each state’s rules

Republican group will focus on judicial races (article)

The New Politics of Judicial Spending (report)

Report: Outside spending distorts state supreme court rulings

UPDATE: An earlier version of this post cited a copy of the report with an incorrect score for Montana. That state’s system earned a 50-point score.

Niraj Chokshi is a general assignment reporter for The Washington Post.

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