Typically, the most active donors in judicial campaigns are lawyers, law firms and organizations or entities that frequently litigate in the state courts. Although judges are not supposed to take into account whether a party or lawyer contributed to his or her campaign, judges are not required to recuse or disqualify themselves from cases in which campaign contributors are lawyers or parties. As a result, during litigation, it is often the case that one party or counsel for one party has contributed to the campaign of the judge. This situation could create the appearance of bias or partiality and undermine the other side's confidence in the judge and the judiciary as a whole.
Despite the ethical rules constraining judicial conduct and requiring judicial impartiality in all circumstances, this is precisely the effect of contributions to judicial campaigns. A poll commissioned by a special commission of the Pennsylvania Supreme Court revealed that nearly 90% of Pennsylvanians believe that campaign contributions affect judicial decision making at least some of the time. (Lake Sosin Snell Perry & Associates an Deardourff/The Media Company Poll, Attachment to the Report of the Supreme Court's Special Commission to Limit Campaign Expenditures, 1998) In fact, judges themselves express concern about the effect of campaign contributions on judicial decision making: in a recent national poll, almost half of the 2,428 state court judges polled that campaign contributions influenced decisions. (Greenberg Quinlan Rosner Research and American Viewpoint poll conducted for Justice At Stake Campaign, 2002.)
Yet the rates of recusal because of campaign contributions is incredibly low. In fact, no state courts have found judges in error for refusing to recuse soley on the basis that a lawyer or litigant was a campaign contributor. Some states, however, are reexamining this question in light of a recent decision of the United States Supreme Court.
In June 2009, the United States Supreme Court recognized the problematic role of money in judicial elections in Caperton v. Massey, a case from West Virginia. In that case, a West Virginia Supreme Court justice refused to recuse from deciding a case in which a significant campaign contributor was the CEO of one of the parties. The United States Supreme Court determined that in some cases, a judge's failure to recuse in a case involving a campaign supporter can rise to the level of a due process violation. According to the high Court, the issue was not actual bias, but whether the circumstances created "a serious risk of actual bias." The risk itself, regardless of whether bias in fact infected the case, was sufficient to require recusal.
A second problem stemming from the role of money in judicial elections concerns the judicial candidates themselves. There already is a widespread perception that to run a successful campaign for judge, even at the county level but especially at the statewide level, one must be able to fund one's campaign significantly through one's own wealth and the wealth of one's family. Personal wealth and fundraising ability, of course, have no relevance to one's qualifications for serving as a judge. These factors currently play too prominent a role in the judicial selection process.
The solution to this problem is simply to eliminate money from the process of electing judges. The only way to do so completely is to change the way judges are selected. Any electoral process involves some fundraising. Even public financing systems require some qualifying fundraising by the candidates. As PMC argued in the summer of 2007 in testimony submitted to the Pennsylvania Senate, campaign contribution limits also are inadequate to solve the problem, because they address only the amount of the contribution, not the fact of the contribution itself.