In a June 25 letter to business leaders, Andrew E. Dochrel, president of the Ohio Chamber of Commerce, promised to take the “positive and informative” high road in the upcoming elections for the state supreme court.
The letter was something of a mca culpa, though Doehrel did not blame himself and didn’t exactly apologize for what happened in the 2000 election campaigns.
He did point out that he had just fired the chamber’s media consultant who had helped craft controversial ads targeting a sitting justice in 2000. But he continued to defend the need for the spots: “The criticism of the campaign’s methods unfortunately overshadowed the campaign’s important messages about the negative impact of an excessively activist supreme court on Ohio’s economy.”
Indeed, some political analysts say the chamber’s campaign backfired through its own nastiness, guaranteeing a loss for its choice. And during the two years since, as the vicious 2000 judicial election cycle around the country has been parsed and studied, criticism has continued to cascade over those television ads in particular.
They targeted Justice Alice Resnick and featured Lady Justice peeking from her blindfold to watch piles of money from trial lawyers and unions tip her scales.
A voiccover asked: “Alice Resnick. Is justice for sale?”
Apparently the Ohio chamber thought so. It spent $ 4 million trying to replace her with someone it considered pro-business, with help from the U.S. Chamber of Commerce. Resnick had written a 1999 opinion that struck down the state’s tort reform law.
But wait–as TV ads sometimes blare–there’s more. At the same time, the neighboring Michigan Chamber of Commerce ran radio and newspaper ads in Ohio urging businesses to relocate to Michigan because its supreme court and “fair laws” have created a “healthy economic environment.”
As this November’s elections near, the question in several states that have become the proving grounds for the U.S. Chamber of Commerce’s new war on lawyers is: What’s the chamber going to do this time? Will its chutzpah and cash be matched by trial lawyers or other public interest groups?
When judge-bashing became a popular sport several years ago, ABA President Alfred P. Carlton Jr. (above) was chair of the Standing Committee on Judicial Independence. He began to focus on maintaining the integrity of the judicary and is continuing that theme during his presidency.
As part of this effort, Carlton named a blue-ribbon Commission on the 21st Century Judiciary. The commission is conducting a series of public forums to develop a framework to ensure judges remain accountable and independent. The first was in Detroit in August; the next in Philadelphia Sept. 26-28; Oct. 31-Nov. 1 in Portland, Ore.; Nov. 21-23 in Austin, Texas; and then a colloquium to wrap it up in Raleigh, N.C., March 13-15 (See also page 66.).
The commission’s honorary co-chairs are Abner J. Mikva, who has been a member of Congress, a federal appellate judge and White House counsel; and William S. Sessions, former FBI director and ex-federal district judge. It is chaired by Edward W. Madeira Jr. of Philadelphia.
And what can be done to preserve the integrity of the justice system now that judicial elections have started looking much like those of the political branches?
With surprising speed, the national chamber has become a major player in judicial elections. For now, the efforts are in a handful of states it believes are inhospitable to business. The U.S. chamber has said it put $ 10 million into judicial races in 2000, mostly in Alabama, Mississippi, Ohio, Michigan and Illinois.
James Wooton, president of the chamber’s Institute for Legal Reform in Washington, D.C., brushes off criticism of the anti-Resnick ads in Ohio.
“The ads we ran in Ohio about Judge Resnick being influenced by her donors do question the integrity of the then-sitting and now re-elected supreme court justice,” Wooton said in an interview with the ABA Journal last year. “It’s either true as an observation or criticism or it is not. However distasteful it is, can anyone say it is wrong to share truthful information? Then we can debate whether it is truthful, and we feel strongly that it was.”
Numerous attempts to interview Wooton or get comments from the Institute for Legal Reform’s public relations office for this story were unavailing.
On the stump, Wooton has hammered two key points: First Amendment freedoms should apply to judicial elections, and the chamber is simply countering the power that plaintiffs lawyers hold over the justice system.
“In the states, the problem is legal systems that are not well-managed by the supreme court from a business point of view,” Wooton said last year. “That may well be predominantly in states with judicial elections that were for a long time dominated by trial lawyer donations.”
In the past, unions, trial lawyers and the lawyers’ state and local groups had been the significant contributors in judicial elections. Usually they gave directly to the candidates. But now, aggressive “issue ads” have come to dominate many elections. The spots usually run in the last couple of weeks before the vote. Because the ads don’t advocate the election or defeat of a particular candidate, they don’t fall under election law requirements mandating the disclosure of donors.
THE MONEY TRAIL
WHILE MANY GROUPS ARE IN THE FRAY, THE CHAMBER HAS not only surpassed them in money and impact, it has left them far behind, say researchers at the Brennan Center for Justice at the New York University School of Law.
The sea change came in the 2000 elections. Money pouring into the supreme court races–$ 45.6 million–marked a 61 percent increase over 1998. The chamber spent $ 1.9 million on TV ads, and trial lawyers and unions combined spent $ 945,000. Those figures, compiled by the Brennan Center, do not include considerable production costs.
“The chamber significantly outgunned the trial lawyers and unions,” says Craig B. Holman, a researcher at the center. “The Chamber of Commerce has really escalated and shaped the air wars in judicial campaigns.”
Making the justice system pro-business is part of what U.S. Chamber of Commerce President Thomas J. Donohue set out to do when he took over the flagging business group in 1997. The feisty leader needed something to bring together the diverging interests of small and big businesses so he could keep them all in the tent. He quickly identified a common enemy standing in the way of reform with these statements:
. “Trial lawyers are sapping the vitality out of American enterprise.”
. “I want to give the trial lawyers and ambulance chasers migraine headaches.”
. “Now the tail is wagging the dog. The lawyers are busy reworking legal principles to enrich themselves, regardless of the impact on society.”
Donohue has more than doubled the contributions to the chamber, mostly from large corporate donors, to more than $ 100 million a year. That is on top of dues revenue from its 150,000 members. Much of the increase, according to chamber documents acquired last year by the Wall Street Journal, comes from Donohue’s offer to let big corporations remain anonymous while it lobbies for them. And some of the contributions go into judicial elections. In the 2000 elections the chamber pumped $ 10 million into races in various states. It is said to be putting three times that, $ 30 million, into this fall’s elections.
SUDDENLY JUDICIAL ELECTIONS ARE MAKING HEADLINES. And a tug-of-war has ensued with widespread, organized opposition to the style of activism adopted by the chamber. Last year, a broad coalition of more than 30 state and national organizations, including the ABA, launched a campaign called Justice at Stake. Through public education and activism to clean up judicial election campaigns, the effort seeks an array of changes.
Among other things, the coalition suggests disclosure of contributors who finance issue ads, contribution limits on their donations and public financing of campaigns. (For more information, go to www.justiceatstake.org.)
And in December 2000, the chief justices of the 17 most populous states that elect judges held a Chief Justices Summit to deal with the spate of problems. They issued a call to action that included a long list of recommendations. Among them were calls for non-governmental monitoring groups to help keep election campaigns fair and ethical, as well as public funding for some elections.
“When the stakes are this high, people are going to find a way to have an impact–that’s what reformers can’t quite get their hands around,” the chamber’s Wooton said in the interview last year.
For many, the 2000 elections were a wakeup call.
“Judicial elections by their nature are very boring,” says Shanto Iyengar, a Stanford University political scientist who studies politics and media. “So attack ads liven them up and get coverage. And political consultants have found a way to expand their business.”
The U.S. Chamber of Commerce is not the lone actor in all this, nor are conservative groups. Michigan Democrats, for example, ran ads in 2000 slamming decisions by some incumbent justices, prompting the Detroit Free Press to say the claim “borders on the bogus.”
But the chamber has quickly come to dominate the new landscape. It is fighting, among other things, so-called drive-by class actions and jumbo-sized plaintiffs’ verdicts. If you can’t change law in the legislatures, the thinking goes, work on the judges who interpret it.
Not that it’s given up on the legislatures. In May, the U.S. chamber launched a $ 100,000 campaign with full-page newspaper ads in Mississippi, urging the citizenry to push for a special legislative session to enact tort reform. Businesses were fleeing to pro-business states, it said.
The effort did not sit well with the locals, not even the state chamber of commerce, which would like to do the sweeping in its own house. The president of the Mississippi Economic Council–equivalent to a state chamber of commerce–went on television to challenge a U.S. chamber spokesman to name one company that had fled the state because of its allegedly flawed judicial system. The spokesman could not.
The recent flap in Mississippi scratched an old sore from the U.S. chamber’s infusion of nearly $ 1 million there in television ads in the 2000 judicial elections. The chief justice, a Republican, asked the chamber to stop running ads supporting her, but it continued doing so. After 15 years on the bench, she lost her supreme court seat in the backlash.
There also is a backlash within the pro-business, conservative tent. In July, representatives of several prominent libertarian and tort-reform groups met for lunch in Washington, D.C. Some of them complained that the U.S. chamber is siphoning contributions that until recently had been going to the rest of them. And, they say, the chamber does not always spend the money wisely.
“We thought they would be like the United Way on civil justice reform and spread the money around,” says one participant, who often works in coalitions for civil justice reform that include the chamber. Instead, he says, groups such as Citizens for a Sound Economy and others are losing revenue to the chamber. “But what they’ve done is try to substitute a Washington, D.C., effort for local- and state-based efforts. Any ads or campaigns that say ‘the American Association of X’ or the ‘U.S. X of this or that’ aren’t going to fly in, say, Mississippi.”
Many critics say the only way to avoid sullying the judiciary is merit selection, which the ABA has supported for more than 70 years. But the 39 states that elect some or all judges have been unwilling to relinquish the direct hold citizens have on the judiciary.
The most recent try for merit selection, on the ballot in Florida’s 2000 elections, was promoted through a public education campaign by the state bar and other groups, including the ABA and the American Judicature Society. That effort went straight down a sinkhole in every circuit in the state.
Pragmatists have changed strategy and are now seeking an incremental approach. The call is for nonpartisan election of judges, which many states already have, and even more significantly for public funding of judicial campaigns and an end to anonymity for those who bankroll issue ads.
But the game may have speeded up when the U.S. Supreme Court ruled in June that candidates for judicial office have a First Amendment right to announce their views on “disputed legal or political issues.” Republican Party of Minnesota v. White, No. 01-521.
That decision is expected to force the crisis even more. “When judges promise results the way politicians do, it’s scary as hell for lawyers,” says Charles G. Geyh, a professor at the University of Indiana School of Law and the reporter for the ABA Commission on Public Financing of Judicial Campaigns. “Things are only going to get uglier and nastier, and the only good news is that merit selection might become a reality if these campaigns become too squalid for words.”
PARTISANSHIP ALIVE AND WELL
“THE SUPREME COURT HAS THROWN THE FAT IN THE fire,” says ABA President Alfred P. Carlton Jr., who recently created the Task Force on Judicial Selection and Campaigns to work with groups in the states. “If judges indeed have First Amendment rights to fully participate in partisan elections, then they’re going to act like partisans. They’re going to have to because the system is going to force them.”
Indeed, there were indications that some U.S. Supreme Court justices were pinching their nostrils as they allowed for more free-wheeling judicial races in the White case. The only one of the nine to have gotten on the state bench by election, Sandra Day O’Connor, wrote in a concurring opinion that “if judges are subject to regular elections they are likely to feel that they have at least some personal stake in the outcome of every publicized case. Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their re-election prospects.”
Justice O’Connor is not alone. A survey released last year by Justice at Stake showed that 76 percent of voters and 26 percent of judges believe campaign donations can influence judicial decisions.
Many scholar-activists such as Roy A. Schotland, who teaches at the Georgetown University Law Center, say there is even more need now for limits on contributions of all kinds and for disclosure of contributors. But some others, even those who agree that electing judges is a dirty business, differ.
Robert A. Levy, a senior fellow at the Cato Institute, says he is against electing judges. But if there are elections, donors should be free to contribute cash, he says. “Money is speech, and you can’t shut down speech. Public money for campaigns is just a protection racket for incumbents and doesn’t reflect the voice of the people whose money it is.”
Whatever the chamber and others do with their money this fall, there will be one significant new factor in the judicial elections. Many state and local bars are expected, with ABA help, to have groups monitoring the campaigns and putting a spotlight on those believed to have a negative impact on the public’s trust and confidence in the judiciary.
“We’ll be watching,” says the ABA’s Carlton.