Judge-election system works well
Since statehood, we have been electing our judges, and since statehood, any person or organization has enjoyed the right to contribute whatever...
Special to The Times
Since statehood, we have been electing our judges, and since statehood, any person or organization has enjoyed the right to contribute whatever they wanted to help the campaign of his or her favorite candidate. And the system has worked well to preserve an independent judiciary — a judiciary that is independent of the Legislature, independent of the governor, and that owes its allegiance to the people themselves.
But if some elites of the Washington State Bar Association and political insiders have their way, this all could change. First on the agenda is capping individual contributions to judicial campaigns. Second is eliminating judicial elections altogether.
Capping individual contributions has a superficial appeal to self-styled "reformers," but let's think about this.
Our current system, adopted by voters' initiative, mandates disclosure rather than limitations. Through disclosure, voters can see who is giving the candidate money and make their judgments accordingly. This system has proven to work well while the limitations strategy used in federal and legislative races creates hard- or impossible-to-trace independent expenditures.
Contribution limitations are at best a serious infringement on the individual right to participate in a campaign in the most efficient way: donating money. And there is nothing wrong with donating money to a campaign — without money, the campaign is ineffectual at delivering its message. Democracy suffers. Hooray for the few who have ever contributed to a judicial campaign; you are the citizens who really care.
Judicial campaigns are currently drastically underfunded. In a state where candidates for governor and U.S. Senate spend $8 million to $10 million in a statewide race, most Supreme Court campaigns (in the same state) have considerably less than $100,000 for the primary and general election combined. A campaign consultant, a targeted mailing and a few radio spots or yard signs are about all the average campaign can afford. Capping campaign contributions from the few willing to donate more than $1,350 — the limit currently on nonjudicial statewide races — will make these campaigns even more ineffectual than they already are.
Nor will these caps stop the bogeyman of special-interest spending. If potentially large organizational donors can't contribute directly to a campaign, they will simply do an independent expenditure — like the last-minute TV blitz the tribes put on just before Election Day three years ago in a Supreme Court race that was ultimately decided by 3,000 or so votes out of 1.5 million cast.
And in any event, what's wrong with special-interest groups donating money to the campaign of judicial candidates they trust to protect the legal rights of their members? Every one of us has our own agenda of what's important and each of us has a vital "special" interest in having our legal rights protected by the courts. Business, labor, civil libertarians, environmentalists, all have an interest to elect a competent judiciary. The sad fact is that very few do what is necessary to protect that interest in a meaningful way.
But taking away the right to donate larger sums to judicial campaigns will have huge unintended consequences: weaker campaigns, independent expenditures without restraints against dishonesty, a huge advantage to the independently wealthy candidate and incumbent protection.
Judicial candidates are governed by strict ethical honesty requirements and can be disciplined for dishonest campaigning, but there is no such prohibition on dishonest campaigns underwritten by independent expenditures. Independent expenditures are not limited under the law. Under the current system, there is little incentive for an independent expenditure, but cap donation limits and there will be a tremendous incentive.
Or, maybe there will be effective campaigns only by the independently wealthy candidates. The state cannot limit a candidate from spending his or her own money. Thus, judgeships for sale are another possible but unanticipated consequence. After all, if candidates can't raise sufficient money from others, those with independent wealth, or high name identification, will have little competition to worry about.
Or maybe there will be no effective campaigns at all. What then? Well, perhaps those who are pushing these "reforms" think that subjective "ratings" by groups they control or mightily influence will maximize their influence on the electorate. After all, didn't this recent effort get started exactly because the elites were frustrated that the people weren't taking their advice?
Talking about advice, mine is this: If it ain't broke, don't fix it. And if you want to play a part in judicial selection, do it the old-fashioned way: Get involved in the campaign of your favorite candidate and help him or her win that election. Power is what you do. Don't let these folks take away your power to select your judges.Justice Richard B. Sanders has served on the Washington Supreme Court at the Temple of Justice in Olympia since 1995.