Vote For Me! I Can't Tell You Why!
As a rule, judicial races bear a pale resemblance to the pitched battles fought to claim other elected offices. Coffers are modestly shored and spent, and campaign rhetoric is generally polite. But the past few judicial elections in Texas have signaled a shift in the tone of these campaigns. Candidates are now spending upwards of $200,000 on advertising, and slinging professional and personal barbs with greater alacrity. It appears this heightened aggressiveness is slowly wending its way north. Although most judicial campaigns in Minnesota have yet to lose their sheen of civility, political insiders point to the adversarial conduct of candidates in the current judges' races in Hennepin County as a harbinger of future elections.
"The 1980s saw the escalation of moneys thrown into judicial races in Texas," says Jon Opelt, executive director of the Houston Chapter of the Citizens Against Lawsuit Abuse. According to Opelt, 60 Minutes produced a show alleging that the state's Supreme Court judges had a strong plaintiff bias and this accusation sparked a series of hotly contested judicial races. "It resulted in business and medical concerns pitting themselves against trial attorneys," he says. Ultimately, Opelt maintains, money pumped into judicial races caused liberal incumbents to lose their seats to more conservative candidates.
In Minnesota, county judges are elected for a six-year term, and individuals seeking office are subject to the same campaign guidelines as other political candidates. There are, however, a few provisos attached: Candidates cannot directly solicit funds--this has to be done by their own election committees--and candidates aren't supposed to know exactly who has contributed or how much. In addition, according to the dictates of the Minnesota Board on Judicial Standards, candidates are prohibited from "making pledges or promises of conduct in office." Nor may a candidate "announce his or her views on disputed legal or political issues..." But there are compensations for having to walk this ethical tightrope. Unlike other races, there are no statutory limits to the amount of money a judicial candidate can raise and spend. And while these measures are intended to safeguard the impartiality of these elected officials, critics maintain that things obviously do not work that way in practice.
"It's hypocritical," says Dennis O'Leary, a media consultant for incumbent Judge William Christensen. "It's no different from any other game except they play this nice little game--that the judge can't solicit funds or know who is contributing," he says. According to O'Leary, the bulk of campaign contribution to judicial candidates come from attorneys and law firms. And these are the very same individuals who stand to gain the most by having an ally on the bench.
According to campaign finance reports from January through August 1996, the amounts collected by candidates' committees range from $0 (Judge Charles Porter) to $18,115 (Hartigan challenger Bruce Peterson). And, as O'Leary says, the majority of funding comes from attorneys and their firms. Incumbent Judge Bruce Hartigan is one of the largest beneficiaries of attorney largesse, some $11,290 to date. And while the average amount raised and spent by candidates currently hovers around the $5,000 mark, O'Leary and others maintain this amount will jump substantially by October 29, when the next report is to be filed. "The money thing is insidious. The more your opponent spends, the more you feel compelled to spend," says O'Leary.
But while O'Leary's candidate's funds match those of Hartigan's, he proudly points out that Christensen's money is his own. "His ethics are high. He won't take money from attorneys," says O'Leary. ("It's really quite simple," explains Christensen. "We've all played baseball, and we don't want umpires accepting money from the players.") While he maintains that the decision to decline contributions from attorneys and firms was strictly a personal one, Christensen neither condemns nor condones his peer's actions. "I'm really not aware of what other candidates are doing. But it's costly to run a campaign in a county this size," he says.
According to Opelt, financing a campaign in Minnesota is pocket change compared to what is now customarily spent in Texas. "In 1994, two candidates spent a total of $6 million in the Democratic primary," says Opelt. Judges in Texas are openly affiliated with political parties; in Minnesota, they are not allowed to disclose party allegiances.
"That was just to get into the race. It wasn't even to win it," adds Opelt with an air of disgust. While he concedes that the bulk of campaign moneys are collected for state Supreme Court races, which are not elected positions in Minnesota, he nonetheless maintains that district races are subject to the pressures associated with influxes of cash.
As to the potential bias that might stem from those campaign contributions, "I can't believe that judges don't peek," says Christensen, a 30-year veteran of the Minnesota bench. And there is no way to ensure that they can't, since campaign finance information is a matter of public record.
Should a judge succeed in remaining ignorant about contributors' identities, Christensen maintains that others are willing, if not eager, to share that knowledge. "Even if a candidate doesn't look, the lawyers will remind you. There's no way to stop them," he says.
But it's not just the stockpiling of funds that's changing the face of judicial elections. In recent years, increasing numbers of attorneys have challenged judges for their seats. According to Elizabeth Olson, the executive director of Minnesota Women Lawyers, this represents a significant shift in attitudes toward the office itself. Once upon a time, she points out, "Lawyers rarely challenged judges. That's changed. This year is also dramatic in the number of races we are seeing and the unusual mix of contenders," she says, citing the contest between 13-year incumbent Pam Alexander and recent law school graduate Kevin Kolosky. While some maintain that discontent with judges' conduct has driven more attorneys to run (three of the seven Hennepin County judges being challenged--Hartigan, Wexler, and Porter--have been reprimanded by the state judicial ethics board), others maintain that it's an economic matter. "Law firms are downsizing," says Christensen, "so there's a plethora of attorneys. And because they want to improve their jobs and working conditions, being a judge suddenly looks pretty good. As a result, a lot more attorneys are filing."
And while some candidates have become more vocal in criticizing opponents, O'Leary maintains the level of civility in Minnesota is largely intact. But he thinks that will change. "The respect [for other candidates] and the overall demeanor will hold up for the next couple of years," he predicts, "but it will become increasingly contentious. We will see more attorneys willing to run against sitting judges and they will be more willing to run negative campaigns. It will look more like Texas."
Opelt says that Texas voters, frustrated with profligate spending in judicial races and an array of negative consequences, are trying to turn the tide. "People got alarmed during the 1994 Republican sweep," he claims, "when minority judges were ousted in droves. Not because they were minorities, but because they had limited resources and the other side [Republicans] outspent them."
As a result, within the past year or so, the state legislature has begun to consider some measures that would level the playing field. "There have been some modest campaign spending limits approved thus far, and there is some discussion about altering how candidates are selected," he says. But while Texas may be ready to adopt a gentler approach to campaigning, it seems that Minnesota will have to learn the same lessons in its own time.
"I predict the situation will get worse before it will get better," says Christensen. "And then there will be public outcry, and the system will be changed. It's the way these things work."
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