Commercial Litigation

The United States Supreme Court Ruling on Campaign Finance

"The founders realized there has to be some place where being right is more important than being popular or being powerful, and where fairness trumps strength—and in our country, that place is supposed to be the courtroom." Retired Justice Sandra Day O’Connor speaking at Keynote Address at Georgetown Law School Conference January, 2010.

The controversial ruling by the United States Supreme Court in Citizens United v. Federal Election Commission, January 21, 2010, determining that the Federal Government may not ban political spending by corporations or unions in candidate elections is sure to have fallout across the country and will impact state held elections ultimately. This includes judicial elections in the State of Texas, as it is only a matter of time, experts say, before laws will be challenged in courts or repealed by state legislature.

Currently, all state court judicial positions in the State of Texas are elected by the general public. This has been a controversial issue for many years, as judges must raise campaign funds in order to run for re-election and much of the money raised for judges are from donations from lawyers and lawfirms. Invariably, these same judges will have to decide cases that involve their contributors and the question is raised…is justice for sale?

A study by Chris Bonneau and Damon Cann in their paper The Effect of Campaign Contributions on Judicial Decisionmaking reveals that attorney contributions have a significant effect on judicial decisions. The study indicated a campaign contribution shifts the predicted probability to a virtually certain win for the side offering the contribution (Page 18 of Article).

As a result, the debate will open up again on whether judicial elections in the State of Texas are appropriate, and this recent Supreme Court decision will revive consideration of an alternative system to the partisan election process of selecting judges in the State of Texas.

Stay tuned…

By J. Allen Smith.