Campaign Finance Reform: DOA
Late last month, State Representative Steve Simon cobbled together a relatively modest proposal to close a gaping loophole in the law governing Minnesota's judicial elections. Simon's idea was simple enough: Impose a strict cap on the amount an individual can legally contribute to a judge's campaign. If nothing else, Simon figured, such a limit would serve as a stop-gap measure while the legislature wrestles with the larger implications of having full-blown partisan judicial elections in the state.
Under Simon's proposal, donors to district court campaigns would face the same dollar limits—$500 a year—as donors to state senate campaigns. The caps on contributions to appellate and supreme court candidates—$1,000 a year—would be identical to the caps for constitutional posts such as attorney general. Simon, a freshman DFL-er from Hopkins, assumed that his fellow lawmakers would also see the need to act swiftly. He was wrong.
Last week, a crucial legislative deadline lapsed before Simon was able to get a hearing on his bill. As a result, there will be no limits on how much an individual can pour into judicial campaigns in the coming elections. With a total of 75 seats at stake in November, Simon says, it's a fair bet that Minnesotans will see some of the most expensive—and nastiest—judicial races in state history.
That's not strictly because of the absence of limits on donors. In fact, the contribution loophole has always existed. It just hasn't mattered much. That changed because of a ruling last summer from the Eighth Circuit Court of Appeals, which struck down restrictions barring judicial candidates from directly soliciting money and seeking the endorsement of political parties.
"With partisan competition, the cost of election will inevitably go up," Simon observes. "As the cost goes up, judges will need more money to fuel the campaign engine. And they are inevitably going to go to the one moneyed source that cares about judges—lawyers and law firms."
Simon, who is a lawyer, worries that the combination of increased fundraising pressure and open politicking could radically transform Minnesota's judiciary. His experience trying a case in Texas—which has partisan judicial elections—only heightened those concerns. "What I saw was ugly and quite possibly corrupt," Simon says. "The name of the game was which lawyers were close to which judges, which law firm had given money to which judges' campaigns."
Texas is hardly the only state where the unimpeded flow of money into judicial races has raised questions about the impartiality of judges. Last year, for instance, an Illinois Supreme Court justice found himself the object of intense scrutiny after he voted to throw out a billion-dollar verdict against the insurance company State Farm. As it turned out, the justice had received some $350,000 in contributions from State Farm's executives and lawyers.
Such outrages—well known in legal and political circles—beg one obvious question: Why didn't Minnesota lawmakers take some action this year to impose meaningful regulations on judicial campaigns? The answer: Because the judges didn't want them to.
Sandy Neren, a lobbyist for the Minnesota District Court Judges Association, says the judges are not inherently opposed to caps on financial contributions. However, she explains, they didn't want the legislature to enact any reforms this session. "The judges didn't have strong feelings about that bill," says Neren. "But they've taken the position, 'We want to look at the big issue and not have anything done this session. Give us some time here.'" To that end, Neren points out, a commission headed by former Governor Al Quie is currently studying the implications of the Eighth Circuit's ruling on judicial elections in Minnesota. The group will probably present recommendations to the legislature next year.
Simon says he understands that the judges are in a difficult and uncertain position. "But I disagree that this particular bill would have disrupted the thoughtful analysis of how to address judicial elections in the long term," he adds. "I do not want Minnesota to become like Texas, Ohio, or Illinois, where the independence of the judiciary has been compromised."
State Senator John Hottinger (DFL-St. Peter), who carried Simon's bill in the senate only to pull it, says he wishes the legislature had enacted some measure this session. But he says he withdrew the bill because it was clear that lawmakers would defer to the judges' wish that they leave the matter alone. "I'm disappointed," Hottinger offers. "I don't think there's any nefarious purpose. I think they [the judges] just want to make sure we move forward in a well thought-out way."
That doesn't sit well with campaign finance reform advocates. "It's not right that there are no contribution limits for judges, and the fact that the judges can take party endorsements just adds fuel to the fire," says Joe Marble, founder of Minnesotans for Responsible Government. Marble planned to testify in favor of Simon's bill at a meeting of the House of Representatives Committee on Civil Law and Elections. Committee chair Jeff Johnson (R-Plymouth), Marble says, refused to take any testimony.
For his part, Johnson explains that Simon's proposal was "probably a good idea" but that he agreed to table the bill out of deference to the judges. Johnson, who is currently the Republican frontrunner for his party's attorney general nomination this fall, says he doubts that the coming judicial election season will be as ugly as some fear.
Greg Wersal, the two-time candidate for the Supreme Court whose legal challenges led to the dismantling of Minnesota's judicial election rules, thinks the legislature should have established contribution limits. "The first group or person to raise two million dollars is going to elect the next state supreme court justice," Wersal predicts. "And if it's simply a race to raise money, we need to start thinking about limiting the amount of money people can give."
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