Analysis: Should We Take Judges Out of the Fundraising Business?

It might seem silly to elect people who promise they won’t represent you, their political party or their donors, but that’s what we expect judges to do. They’re supposed to apply the law, and if they do any of those other things, they’re probably out of line.

Florida elects judges but bars them from raising their own campaign money. Lots of Texas judges — and Texas lawyers —would love to see similar restraints here.

“If you are an incumbent judge and you call a lawyer and ask for money, what is that lawyer going to say? No?” asks Wallace Jefferson, a former chief justice of the Texas Supreme Court who now practices law in Austin. “That incumbent judge is going to raise more money. But no one should feel pressured to contribute.”

Better, he says, to take the judges out of the fundraising business and leave the transactional part of politics to campaign committees and others.

It could happen: The U.S. Supreme Court upheld Florida’s law last month after challengers said it violated their First Amendment rights. That court was also concerned with whether asking for money sullied the impartiality of the elected judges. The court decided that was a serious enough public interest to justify the fundraising restriction.

“Simply put, the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors,” Chief Justice John Roberts wrote in the majority opinion.

It’s hard to keep politics out of the law when judges have to stand for election. Nathan Hecht, the current chief justice of the Texas Supreme Court, touched briefly on that in his State of the Judiciary speech earlier in the legislative session. “I have not spoken to the problems of judicial selection because I have no consensus solution,” he said.

Hecht went on to say that Texans want accountable judges but said voters know so little about them that “election results are usually the product of campaign spending, familiar names, political swings and blind luck.”

The first two of those — the controllable variables — have to do with money, which is required by campaigns to make unfamiliar names familiar.

In its purest form, raising money for a political campaign is simply a way of asking for support and a kind of endorsement all at once. The donor offers the candidate a little of what’s needed to proceed and the candidate who gathers the most support — in the form of money and votes — wins.

It smells just fine in the civics textbooks, but in practice, it can carry a strong scent, especially in judicial races. For one thing, judges aren’t supposed to represent the people who elect them. “Unlike a politician, who is expected to be appropriately responsive to the preferences of supporters, a judge in deciding cases may not follow the preferences of his supporters or provide any special consideration to his campaign donors,” Roberts wrote.

Some states have dumped judicial elections altogether, and others have opted for hybrid forms, such as one where voters decide whether to retain judges who initially are appointed to office.

Judges here have asked for changes in how Texas gets its jurists, but legislation has never gone far. Neither have other changes.

This legislative session, state Rep. Rafael Anchia, D-Dallas, filed a bill that would start public financing of campaigns for appellate judges in Texas. It was sent to the House Elections Committee on March 9 and never heard from again.

Sen. and former state District Judge Joan Huffman, R-Houston, has a bill that would eliminate straight-ticket voting in judicial races — the idea is to free judges from the slings and arrows of party politics. That one is stalled, as is its identical twin in the House, filed by Rep. Kenneth Sheets, R-Dallas.

Jefferson and Tom Phillips, who preceded him as the Texas high court’s chief justice, wrote an amicus brief in the federal case, along with a couple of former chiefs of Alabama’s Supreme Court. “As former Chief Justices who have observed countless elections in our own States, and run as candidates for judicial office, we are well-acquainted with the genuine dangers — and sometimes actual abuse — present when judicial candidates personally solicit campaign contributions from parties and lawyers,” they wrote.

Now that the Florida law has been upheld, Jefferson thinks “it would be a step in the right direction” for Texas to take judges out of the campaign fundraising business.

“To me, money is not in the center except to the extent that the public believes, if a judge is accepting money from a lawyer or litigant, that they’ll be more likely to favor that lawyer or litigant,” Jefferson says. “I don’t believe that is generally true, but the public believes it. And I understand that belief. It undermines the ideal of impartial justice.”