May 20 2015

What High Campaign Fundraising Totals Mean for the Pennsylvania Supreme Court Race

Even before the Pennsylvania Supreme Court primary on Tuesday, May 19, 2015, fundraising totals for the 12 candidates for three open seats has soared into the millions—nearly $5 million raised according to the latest campaign finance reports from the Pennsylvania Department of State, with $2.3 million already spent. A recent article in the Legal Intelligencer notes that by May 2007 in that year’s Supreme Court election, with seven candidates vying for two seats, $2.2 million had been raised, less than the total already spent in this year’s race. While the comparison is not perfect, double the money is in play in this year’s election and the stakes are enormous with more than 40% of the seven-seat court up for grabs. As of the time of the latest campaign finance report, more had been raised for the Supreme Court election than for the Philadelphia Mayor’s race (not including, of course, any independent expenditures).

Television ad spending has also blossomed in the Supreme Court primaries to the tune of $2.4 million as of May 15, 2015, according to Federal Communications Commissions records analyzed by Brennan Center for Justice and Justice at Stake. The funds that make this possible typically originate from constituencies with specific business before the court, including lawyers, law firms, and special interests. The Legal Intelligencer found in analyzing this year’s Supreme Court contributions that the most substantial donations, “… have come from lawyers, unions, and lawyer-funded political action committees.” These groups then have tremendous influence in the primary, where voter education about the candidates is often low and may be informed by a brief TV ad.

What this shows is booming political action surrounding judicial elections and the need for judicial candidates, expected to be fair and impartial arbiters of the law, to act as fundraisers. This feeds public perceptions of mistrust in the judiciary as candidates are seen as beholden to the interests that fund their campaigns. A recent report on Al Jazeera America delves into the issue, including analysis of the Pennsylvania Supreme Court election and candidates’ need to seek funds and endorsements from groups that may come before the court. This mistrust has been further exacerbated by judicial scandals reaching the Pennsylvania Supreme Court, resulting in two of the current court vacancies.

To restore public trust in the judiciary, and the Pennsylvania Supreme Court specifically, a different approach from partisan elections is required. While not perfect, merit selection offers the best hope for a judiciary that Pennsylvanians will see as impartial, fair, and removed from campaign funds. Merit selection would replace partisan elections for Pennsylvania’s appellate judges with a hybrid appointive and elective system dedicated to identifying and advancing highly qualified candidates to the bench, without the inherent problems of partisan judicial elections.

An amendment to the Pennsylvania Constitution addressing merit selection is expected to be introduced in the near future.

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May 15 2015

TV Ad Bookings Soar to $ 2.4 Million in Pennsylvania Supreme Court Primary

Published by under Judicial Elections

Washington, D.C., May 15 – Pennsylvania Supreme Court primary candidates are airing a barrage of last-minute television advertising, pushing broadcast TV ad buy totals up to at least $2.4 million as of May 15, according to Federal Communications Commission records analyzed by Brennan Center for Justice and Justice at Stake. This represents almost $1 million in new ad buys in three days.

Seven of the 12 candidates running in the primary are running television ads, which can be seen on the Brennan Center’s “Buying Time” website. The ads continue to focus on themes of ethics and candidate qualifications, with no advertising purchased to date by interest groups or political parties.

“Unfortunately, it looks like Pennsylvanians could be heading for an historically costly battle over three Supreme Court seats,” said Bert Brandenburg, Executive Director of Justice at Stake, a nonprofit, nonpartisan group that advocates for fair courts. “The TV ad dollars are multiplying literally overnight, and this is just for the primary. The spectacle of so much spending, on top of recent scandals affecting the Court, ought to put insulating judges from money and political pressure at the top of Pennsylvania’s agenda.”

“The recent upswing in spending raises concerns about fundraising pressure on judicial candidates,” said Alicia Bannon, Counsel at the Brennan Center for Justice at NYU School of Law. “Historically lawyers, law firms, and special interests have been major contributors to Pennsylvania judicial candidates, raising concerns about how fundraising may impact judges’ decisions on the bench. We need stronger protections to insulate judges from the appearance of bias.”

“This is just the tip of the iceberg compared to what we’ll likely see before the race ends in November,” commented Lynn Marks, Executive Director of Pennsylvanians for Modern Courts. “The real problem is that the money for all this advertising is flowing into campaign coffers from the same lawyers, law firms and special interests that could someday appear before these judges in court.  Just seeing this amount of spending should make Pennsylvanians stop and think about whether there isn’t a better way to choose our judges.”

The Democratic primary continues to see the highest ad spending. Judge Kevin Dougherty has now booked contracts totaling at least $1 million according to FCC files. Judge David Wecht has booked TV contracts worth nearly $440,000, while Judge John Foradora has booked TV contracts worth at least $200,000. Judge Anne Lazarus has booked ad contracts totaling over $200,000 as well. Judges Dwayne Woodruff and Christine Donohue have not booked any TV ads to date.

Republican candidates have increased their TV ad spending, but to a lesser extent. Judge Anne Covey has now booked contracts worth nearly $140,000. Judges Judy Olson and Michael George have jointly booked ad contracts worth at least $170,000. In addition, George has booked separate contracts worth nearly $200,000, and Olson has booked separate contracts worth at least $30,000. No ad contracts have been logged to date for Justice Correale Stevens, Judge Cheryl Lynn Allen, or Montour County District Attorney Rebecca Warren, the remaining Republicans in the race.

Pennsylvania has a history of high-cost judicial elections, but with an unprecedented three seats open this year, this race has the potential to break state spending records. The ideological balance of the court also hangs in the balance. The highest TV spending totals in a Supreme Court election in the state occurred back in 2007, when they reached $4.6 million for the year (with two open seats and one retention election).

Please note: Totals include broadcast television contracts publicly available from FCC files only. Additional spending for radio or cable television advertising is not included.

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Justice at Stake is a nonpartisan, nonprofit organization working to keep America’s courts fair and impartial. Justice at Stake and its 50-plus state and national partners educate the public, and work for reforms to keep politics and special interests out of the courtroom – so judges can protect our Constitution, our rights and the rule of law. For more about Justice at Stake, go to www.justiceatstake.org or www.gavelgrab.org.

Pennsylvanians for Modern Courts is a statewide, nonprofit, nonpartisan organization working to ensure that all Pennsylvanians can come to our courts for justice with confidence that the most qualified, fair, and impartial judges will preside over their cases. For more information, visit www.pmconline.org.

The Brennan Center for Justice at New York University School of Law is a non-partisan public policy and law institute that focuses on fundamental issues of democracy and justice.  Its work ranges from voting rights to campaign finance reform, from racial justice in criminal law to presidential power in the fight against terrorism. A singular institution — part think tank, part public interest law firm, part advocacy group — the Brennan Center combines scholarship, legislative and legal advocacy, and communications to win meaningful, measurable change in the public sector.  For more information about the Brennan Center, go to www.brennancenter.org.

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May 06 2015

Some Final Thoughts

Published by under Merit Selection

As my fellowship with PMC comes to an end, I’d like to take some time to reflect on my experiences here and to write about some of what I’ve learned as a legal fellow. When I first started at PMC in December 2014, I knew very little about how judges were selected in PA. I knew that I was interested in access to justice issues, and that is what drew me to PMC. Now, after leaving PMC, I can say that the system for electing judges in PA is fairly terrifying. Having closely followed the upcoming PA Supreme Court race, I find the amount of money already raised by the candidates to be pretty appalling (more than one candidate having already raised over $500,000 – aren’t there better things people could be spending that money on?).

I am also pretty astounded that even though each of the PA Supreme Court candidates will admit that money in judicial campaigns are problematic – none will admit that judicial elections themselves are the problem. All of them claim to support judicial elections, even though they confess that the money prevents good candidates from running, lowers public faith in an impartial judiciary, and more. But without judicial elections the money problems go away – with them, they just keep getting worse (especially post-Citizens United). So why are all the judicial candidates so afraid to say change is needed?

In general, I am concerned about the voiceless. I am concerned that the people who are contributing hundreds of thousands of dollars to judicial campaigns are the only ones being heard. That judges have white, wealthy donors in the back of their minds when they are making decisions. That outside special interest groups have hijacked judicial elections and in turn the average Pennsylvanian is being ignored. I am concerned that judges may have trouble being entirely impartial when a party in front of them donated large sums to their campaign. This is all very troubling to me.

Perhaps what I found most disturbing through my time at PMC was the correlation between judges issuing harsher sentences against criminal defendants during an election year. That so-called “attack ads” that accuse judges of being “too soft on crime” may legitimately impact how judges rule in criminal cases. It is pretty horrifying that citizens of our state may not be getting a fair shake in court – may be receiving longer prison sentences – solely because judges are afraid of judicial “attack ads” that may affect their future careers as judges.

Despite all of the problems with judicial elections that I have encountered during my short time here, the issue seems to be largely ignored by the mainstream media. Like I said, I knew barely anything about this before I started here. We need to educate the public about these major flaws with our current system. Anyone who ever has to appear in front of a judge for any reason should be concerned that the judge may not be able to be impartial because of a campaign contribution, or a television ad.

I am grateful for my short time here at PMC. I am grateful that my eyes have been opened to these issues. Judicial elections are a huge problem. While merit selection may not be perfect (no system is), it is the best we can do. I am really hoping that the proposed merit selection bill makes it through the PA House and Senate this time around and is put to a vote by the people. And I am hoping that the people can access the right information and do the right thing and choose merit selection. Judges and their decisions are too important, there is simply too much at stake, for things to continue on as they have been.

Huge thanks to Lynn Marks and Suzanne Almeida for hosting me these past several months. It’s been awesome!

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May 04 2015

As More Money Flows into Pennsylvania’s Supreme Court Race, It’s Time for Merit Selection

Candidates for the Pennsylvania Supreme Court have already raised at least $2 million in campaign contributions this year.  Many predict that this is only a small fraction of the total amount of money that will be raised in the 2015 Supreme Court election.  Three seats are up for grabs in this year’s election setting up  an extremely competitive and very expensive election in Pennsylvania.

In 2009, an election for a single seat on the Supreme Court came with a $4.7 million price tag.  If recent elections for judges in other states are a reliable indicator, the price on the 2015 PA Supreme Court election will likely be exponentially higher.  As reported by Mother Jones magazine statewide judicial candidates across the country collected $110 million in 2012.

Pennsylvanians are rightly concerned about the impact of money in judicial elections. Regardless of whether it’s true, members of the public tend to think that contributions to judicial candidates directly impact the judge’s decision-making. This is unacceptable. As the Pennsylvania courts try to rebound from several scandals, expensive judicial campaigns could further lower the public’s opinion of a judicial system, Lynn Marks, Executive Director of Pennsylvanians for Modern Courts said.

Making matters worse, the majority of contributors to judicial elections are trial attorneys or special interests with cases that could likely come before the high court, Marks continued.  “There is just something wrong with a system that practically requires judges and judicial candidates to seek contributions and endorsements from people who could be before them,” she said.  “I’m not saying that judges are making decisions based on who gives the money, but that’s the perception that the public has.”  Marks expects that many law firms will donate to multiple candidates so as to ensure their contributions reach a candidate that will end up on the bench.

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Apr 22 2015

2015 PA Supreme Court Race Is a “Game Changer”

With the primary for the Pennsylvania Supreme Court race looming, the race promises to be a “game changer” for the court. With an unprecedented three seats open on the court, the race is one of “the most significant races in state history.” The vacancies on the high court exist in the wake of numerous scandals, including the resignation of Justice Seamus McCaffery for sending out pornographic emails and the departure of Justice Joan Orie Melvin amid her conviction for public corruption.

John Gedid, who formerly served on the Supreme Court rules committee, called the 2015 election a “blockbuster race,” noting that whoever wins will determine the political makeup of the court. With the significant number of seats opening, it is almost inevitable that lawyers and special interest groups will get involved, and will be pouring large sums of money into candidates’ campaigns. Lynn Marks of PMC commented, stating, “Money too often comes from lawyers and interest groups who care about the outcome of races. And yet when we go to court we want to have justice. We want to feel like that judge is fair and impartial and you don’t want to be thinking well gee I wonder if my opponent made a large contribution to the judge.”

And that is precisely one (of many) problems with judicial elections. Judges are supposed to be neutral arbiters of the law. But when special interest groups and lawyers get involved, some contributing hundreds of thousands of dollars to judicial campaigns, and those same individuals appear in front of the judge they contributed money to, some begin to question whether it is possible for that judge to remain neutral and decide the case solely based on the facts and the law. Even if the judge is neutral, simply the appearance of impropriety is problematic. The public loses faith in a judiciary that does not appear to be deciding cases in an impartial manner, in a judiciary that could be basing its decision on whether one litigant contributed money to its campaign or not. Public confidence in the judiciary is crucial, and judicial elections harm that confidence.

One of the only ways to solve this problem is to change the system. Elections are inherently political, but judges are not politicians. Judges are not supposed to cater to special interests, or to make campaign promises. So does it make sense to elect judges? With three seats open on the Supreme Court, this election cycle promises to be a spectacle. We can prevent this type of spectacle from reoccurring in the future by moving toward a merit selection system. It is time to put a stop to judicial elections – it is time for merit selection in Pennsylvania.

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Apr 17 2015

Representatives Cutler and Dean Announce Merit Selection Amendment

On Monday, April 13, Pennsylvania Representatives Bryan Cutler (R-Lancaster) and Madeleine Dean (D-Montgomery), announced to their House colleagues that they plan to introduce a constitutional amendment in the near-term that would replace partisan judicial elections for Pennsylvania’s appellate court judges with merit selection. An article in the Allentown Morning Call detailed the announcement.

Merit selection is specifically designed to accomplish the most important element of a judicial selection system: getting the most qualified judges on the bench. Further, merit selection effectively addresses the problems inherent in electing judges, like judges having to raise campaign funds, public perceptions that judges may not be impartial due to the influence of outside funders, and ballot position, name recognition, or fundraising success influencing outcomes of elections.

Recent reports suggest heavy spending for the upcoming judicial primaries, e.g. a recent article indicated that one candidate received a single donation of $500,000, the largest thus far in the election. Reported First Quarter fundraising totals are reported in an article from Politics PA.

Cutler and Dean explain that, “Merit selection is a better way to ensure a fair, impartial, and qualified judiciary.  Merit selection focuses on qualifications: legal experience, reputation for ethical behavior, honesty, fairness and good temperament.” Pennsylvanians for Modern Courts asks supporters of merit selection to urge their legislators to cosponsor the joint resolution to amend the Pennsylvania Constitution. Ultimately, merit selection is the best way forward to advance judicial independence in Pennsylvania.

Current members of the House Judiciary Committee include: R. Marisco, J. Petrarca, T. Stephens, G. Grell, T. Krieger, M. Vereb, J. Cox, S. Delozier, G. Everett, J. Hackett, B. Jozwiak, M. Keller, T. Nesbit, M. Regan, R. Saccone, M. Toepel, T. Toohil, D. Miller, T. Briggs, D. Costa, B. Neuman, B. Barbin, R. Bizzarro, T. Davis, M. Dean, G. Mullery, M. Rozzi.

Prior Session Co-sponsors: Sima, DeLission, D. Miller, Mundy, Ross, Murt, Aument, Fleck, Lawrence, Santarsiero, Evankovich, Quinn, Milne, McCarter, Kampf, Schreiber, Vitali, Kirkland, Galloway, Frankel, White, DiGirolamo, Dean, and M. Daley.

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Apr 09 2015

Justice Sue Bell Cobb Interview Highlights Need for Merit Selection

Published by under Judges,Merit Selection

Dave Davies of National Public Radio recently interviewed former Chief Justice of the Alabama Supreme Court Sue Bell Cobb an outspoken critic of judicial elections on the Fresh Air program.

Although her 2006 campaign for the Alabama Supreme Court is the second most expensive judicial election on record, that is likely to change this year with three seats open on the Pennsylvania Supreme Court. For judicial candidates to be successful, they must raise significant amounts of money. According to Justice Cobb, this is primarily because judicial candidates cannot effectively get their message out without airing campaign ads on television, which are increasingly expensive.

The requirement that judges must raise money and the influence of money in political races is increasingly problematic as it fosters a negative public perception of the judiciary.  Judges are supposed to be fair and impartial.

In Justice Cobb’s view, “It’s just not the way that judges ought to be elected because it is really tawdry. It’s difficult. It’s demeans the court, demeans the position. It’s just not appropriate. It absolutely makes people think less of the courts and judges. Nobody wants judges to have their hands out”

In addition to the problems inherent in fundraising by judicial candidates, judicial elections also require candidates who are also sitting judges to split their time. As Justice Cobb stated, “The time away from the office is a significant reason why we should not have judges selected the way they are selected in most states in the United States.”

Recalling her own time as a judicial candidate, Justice Cobb explained that she spent a significant amount away from her primary role of serving the public interest as a judge in order to remain competitive. “There was absolutely no way that I could do the job that was required for the people of Alabama and raise the amount of money that it was going to take to be re-elected.”

Along with Alabama, Pennsylvania is one of only six states that elect all our judges in partisan judicial elections. It’s clear that our system isn’t working. It’s time for merit selection in Pennsylvania. We deserve it.

Read more: http://www.al.com/news/index.ssf/2015/03/former_alabama_chief_justice_o.html

 

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Apr 08 2015

Judicial candidate fundraising is a double edged sword

The twelve candidates running for Pennsylvania Supreme Court filed their first financial reports of 2015 yesterday. For candidates and the public, fundraising is a double edged sword. On the one hand, judicial candidates need to raise substantial amounts of money to “send the message ‘I’m a serious candidate,’” according to G. Terry Madonna, a political scientist and pollster at Franklin & Marshall College.

On the other hand, fundraising by judicial candidates undermines public confidence in the judiciary. According to Lynn Marks of PMC “people overwhelmingly think contributors will have a leg up in court.” In a 2013 poll for the Brennan Center for Justice, approximately 9 out of 10 respondents said that campaign contributions have a “great deal” or “some” influence on how judges rule.

Making matters worse, most of the money “comes from lawyers and special-interest groups who have an interest in the outcome of cases,” according to Marks. Business and special interest groups are generally heavily involved in judicial campaigns. John Dougherty, the brother of candidate Judge Kevin Dougherty, is a member of Philadelphia-based Local 98 of the International Brotherhood of Electrical Workers. It is expected that they will be involved in his campaign. With large contributions from business interests and lawyers, and few contributions from individual voters, people may rightfully question whether the average Pennsylvanian can get a fair shake in court.

Lawyers also feel the heat in judicial elections. Marks stated, “Lawyers have told me they feel they are in a very difficult position if they don’t contribute.” Judge Wecht, a Supreme Court candidate, noted that the public may be impressed with judges who obtain attorney contributions, stating, “A lawyer has a perspective on the quality of a judge that a non-lawyer might not have.” In reality, it is more likely that the public will feel that a judge would not be able to make an impartial ruling when an attorney in front of him or her has contributed large sums to his or her campaign. Meanwhile, lawyers feel obligated to contribute to a campaign, or a judge may not look upon them favorably in the future. In the end, nobody wins.

By way of comparison, in 2007, the winners for the open Supreme Court seats, Debra McCloskey Todd and Seamus McCaffery, raised $3.8 million between the two of them for their judicial campaigns. The early fundraising numbers this year already indicate that this election’s spending race is likely to be even greater than years past.

There is no perfect solution to this problem. The best answer, however, is to adopt a merit selection system. Merit selection ensures that the best candidate is chosen for the job by using a bi-partisan selection committee to do the majority of the work. The messy politics and campaign fundraising is removed from the system. Judges are not politicians. They should not be required to fundraise as if they were. Pennsylvania deserves better – it is time to put a stop to judicial elections and implement merit selection.

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Apr 06 2015

In a Crowded Judicial Election, the Winner is Often Left to Chance

With more than 50 candidates vying for 12 open seats on Philadelphia’s Court of Common Pleas, some are questioning whether voters will be able educate themselves regarding each candidate and cast an informed vote. Philadelphia’s primary is May 19th, and time is running short. With such a crowded ballot, many are likely to vote based on arbitrary criteria, such as ballot position or name recognition.

So is it possible for people to educate themselves about the numerous candidates before heading out to the polls? In a recent article published in The Philadelphia Inquirer, the Philadelphia Bar Association’s ratings system is discussed. The bar association releases its ratings through a 30-member panel comprised of lawyers and other experts. This year the categories include “recommended,” “not recommended,” and “highly recommended.” So far, three candidates have been issued a “highly recommended rating,” with more ratings to be released shortly. The Inquirer is pleased with the addition of a “highly recommended” category, saying it could become a helpful “gold standard” for Philadelphia voters to look to. But is it enough?

As the article rightfully points out, other than the Bar Association ratings, there isn’t a great deal of information out there. Voters can turn to Google, but Googling each candidate would take a tremendous amount of time, and often does not yield much results. There are also political endorsements, but as the article points out, three Democrats endorsed by the party received a “not recommended” rating by the Bar Association. And with twelve open seats and only three “highly recommended” ratings currently issued, how are voters supposed to choose nine more candidates from the remaining congested field?

Not being able to obtain information on judicial candidates is obviously a major problem, with even greater implications at the appellate level. This year, Pennsylvania has three open seats on its Supreme Court. It is troubling that Pennsylvanians may lack information regarding candidates who are running for the highest court in our state. More likely than not, some of the candidates will be selected based on their position on the ballot rather than their experience and ability to handle the job. This, among other reasons, is why it is important to abandon judicial elections in favor of a merit selection system. Which judges are selected for the bench should not be left to chance. Merit selection is the best way to ensure that those who are most qualified for the job are chosen.

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Mar 26 2015

In Response to Growing Influence of Money in Judicial Elections, Former Alabama Chief Justice Supports Merit Selection

This year, the U.S. Supreme Court is scheduled to decide whether state ethics rules can prohibit judicial candidates from personally soliciting campaign contributions. The case, Williams-Yulee v. Florida Bar, could have major implications in some of the 33 states, like Pennsylvania, which have this prohibition in place. A ruling against the Florida Bar would effectively force judicial candidates around the country deeper into the world of political fundraising. Involving judges more deeply in campaign fund solicitation will likely further exacerbate issues of public trust in impartial, independent courts. This case should raise alarm: Should judges act as ordinary politicians soliciting campaign funds? Sue Bell Cobb, former Chief Justice of the Alabama Supreme Court, doesn’t think so.

In a recent Politico article, Justice Cobb, expressed her embarrassment at the idea that donors feel compelled to contribute to judicial campaigns in order to be served. According to Justice Cobb, “Judges are meant to be impartial. They’re supposed to apply the settled law against facts and evidence of the case before their court.” However, in a world where campaign dollars flow more and more freely, partisan elected courts tend to reflect more of the interests of whatever side has more money to spend. Further, partisan judicial elections focus more attention on the personal views of judicial candidates than, more importantly, how fairly they will uphold the law. These perceptions weigh heavily on the public trust of the courts and highlight the need for an alternative to judicial elections.

Justice Cobb advocates for the simple premise of fairness when considering judicial reform. To achieve fairness, she highlights merit selection as an attractive alternative to partisan elections. Merit selection removes the specter of campaign contributions from the courts and its ugly and embarrassing consequences to public trust and the judges themselves. Further, merit selection allows for the screening and evaluation of judicial candidates based solely on their qualifications while maintaining public accountability through a nonpartisan retention vote.

In Pennsylvania, with several high profile judicial elections on the horizon in 2015, the time is now to move forward with merit selection. The increasingly partisan climate surrounding judicial elections around the country, inflow of outside money, and potential neutering of ethics rules against judicial candidates soliciting campaign funds should raise alarm and needs to be addressed now. The best way to do this is to forego partisan elections altogether and adopt merit selection.

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