Campaign Contributions, Judicial Decisions, and the Texas Supreme Court: Assessing the Appearance of Impropriety
McCall, Madhavi M., McCall, Michael A., Judicature
Research documents both the tremendous increase in the cost of judicial election campaigns as well as the ethical issues such contributions pose.1 Although many are troubled by campaign contributions, little empirical research systematically examines the possible effect of these monies on judicial behavior.2
This article presents empirical evidence showing campaign contributions are related to judicial decisions. Although it does not attempt to determine which came first-whether dollars follow decisions or decisions are a response to campaign dollars-it does present evidence that dollars and decisions have a strong association.
The research coded as either pro-plaintiff or prodefendant the disposition of judicial decisions made between January 1994 and June 1997 by seven Texas Supreme Court justices. It also tracked contributions to each justice's campaign by parties to the case, if such contributions pre-dated the case decision, and if made within the 18 months leading up to the justice's re-election bid. Using contingency tables, we find a relationship between the direction of the judicial votes and the presence of campaign contributions, and that the strength of this association differs by justice.3
Establishing a relationship between dollars and decisions is a difficult empirical proposition. Rather than attempting to influence future votes, for instance, a contributor might be rewarding a justice for past votes or attempting to keep friendly justices on the bench as insurance for future cases. For example, a pro-business group might contribute to a conservative judge because of a shared ideology, and thus subsequent conservative decisions by that judge may merely reflect the judge's ideological preferences. As Chemerinsky explains:
There is no way to prove the extent to which contributions and spending actually affect judicial decision-making. If the insurance industry donates a large amount of money to a judicial candidate and as a judge the individual later consistently rules in favor of insurance companies, cause and effect cannot be known. Perhaps the insurance company spent money on behalf of the candidate because of his sympathetic views and he or she would have voted the same way no matter what the spending. Or perhaps the spending had a subtle effect in reinforcing the individual's pro-insurance views or even in moving them in that direction. It certainly also is possible that the judge was consciously aware of the campaign spending in deciding the cases and was thinking of the next election that needed to be funded.4
Even more difficult than establishing a relationship between judicial votes that are consistent with a justice's policy preferences and contributions from groups with policy leanings congruent with those of the justice is determining why liberal groups might support a conservative justice's campaign. It is unlikely that a liberal plaintiff's attorney agrees with a justice's conservative, pro-business stance. Thus, this research seeks to discern if patterns exist among votes cast that are unexpected given the justices' policy preferences but consistent with the preferences of campaign contributors. Rather than attempting to expose "vote buying," it focuses on these circumstances because it is here that observers might perceive what could appear to some as judicial impropriety.
The research benefits from a prime characteristic of the Texas Supreme Court between 1994 and 1997: all justices are highly conservative and are presumed to predominantly favor defense-oriented positions in the types of cases examined, such as the regulation of businesses and other suits against corporations. The justices' policy preferences suggest they cast votes for large businesses as defendants. Liberal votes are unexpected. Consequently, given the court's conservative orientation, this work examines the relationship between liberal votes and contributions by sources associated with the liberal position in a given case. …