Academic journal article Justice System Journal

The Effect of per Se Recusal Rules on Donor Behavior in Judicial Elections

Academic journal article Justice System Journal

The Effect of per Se Recusal Rules on Donor Behavior in Judicial Elections

Article excerpt

Recent judicial decisions and political developments have elevated the issue of impartiality among elected judges as a topic of public and scholarly interest. Using a data set of all donations to candidates for the Supreme Court of Alabama from 1994 through 2010, we explore one potential proposal for limiting the appearance of judicial bias and its effects on the behavior of campaign donors-per se recusal. Our results indicate that the existence of a per se recusal statute significantly decreases the likelihood of observing large donations from several categories of donors. In auxiliary analysis, we find that attorney donors have increasingly funneled contributions through PACs since this statute's enactment-presumably, because such contributions are exempted from the law.

As campaign spending has increased, so too has the perception that interested third parties can sway the court system in their favor through monetary participation in the election process. This perception strikes at the very heart of the judiciary's role in our society-West Virginia Independent Commission on Judicial Reform, Final Report (qtd. in Sample, 2010).

Over the past four decades, a number of factors have converged to spotlight the precarious relationship between the ideal of judicial impartiality and the realities of contemporary American elections. On the one hand, in decisions such as Buckley v. Valeo (1976) and Citizens United v. FEC (2010), the U.S. Supreme Court has held that political expenditures are a form of speech that merit constitutional protection. The Court has also invalidated state restrictions on campaign speech by judicial candidates (see Republican Party of Minnesota v. White, 2002) on First Amendment grounds. Such decisions, combined with growing competition for state supreme court seats and the increasingly central role of state judicial systems in certain legal areas (Goldberg, 2007; Bonneau, 2005; Baum, 2003; Ware, 2002), have contributed to dramatic increases in the cost of statewide judicial races (e.g., Bonneau, 2007b; Baum, 2003; Cheek and Champagne, 2000). For example, total expenditures on state supreme court elections rose from $83 million during the 1990s to over $200 million in the following decade (Skaggs and Silver, 2011:6). Perhaps even more interesting, "between 1994 and 1998, candidates for state supreme courts raised a total of $73.5 million, and nineteen candidates broke the million-dollar threshold" (Sample and Pozen, 2007:1). In addition to increasing the potential influence of donors and their giving behavior in judicial races, such developments have blurred traditional distinctions between the character of such elections and those of the more "political" branches.

At the same time, this has fostered considerable concern about the ability of elected judges to maintain the appearance (or the reality) of objectivity in certain instances-most notably, those cases in which campaign contributors appear before them. Public opinion surveys indicate that nearly 75 percent of Americans believe that campaign contributions have some influence on judicial decisions (Sample and Pozen, 2007:2), as do 46 percent of state judges (Sample et al., 2010:12). Journalistic (e.g., Liptak and Roberts, 2006) and scholarly (e.g., Ware, 2002) accounts have helped stoke that public concern, leading some to assert that such skepticism threatens perceptions of judicial legitimacy (Sample and Pozen, 2007; see also Gibson and Caldeira, 2012).

Having unquestionably enhanced the role of money and politics in judicial elections with the decisions noted above, in 2009 the U.S. Supreme Court held in Caperton v. Massey that the Fourteenth Amendment's due-process clause required a state supreme court justice's recusal from a case in which a campaign contributor had a substantial financial interest.1 The Caperton Court addressed the recusal issue by requiring it when "the probability of actual bias... is too high to be constitutionally tolerable. …

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