Court candidates, pledge to limit campaign donations

By Bruce Ledewitz

I have a request to make of the successful candidates in Tuesday's primary races for the Pennsylvania Supreme Court.

Three of them will be elected in November to 10-year terms on the Pennsylvania Supreme Court. But the question now is, will the six candidates agree to protect the institution of the court from the corrupting effect of independent money in the upcoming campaign? It is within their power to do so.

While a lot of Pennsylvanians are concerned about the large amount of money that is going to be spent in the race for the Supreme Court, it is actually very difficult for campaign contributions to corrupt a court. For one thing, judges are notoriously unpredictable in how they turn out on the bench. U.S. Supreme Court Justices William Brennan, David Souter, and Harry Blackmun were all supposed to be conservatives.

Closer to home, who would have predicted that Ronald Castille, a conservative Republican, would revolutionize the environmental rights provision in the Pennsylvania Constitution, protect the right to vote, nullify a partisan redistricting plan designed by his own party, and uphold the right to dance naked in the City of Erie. Yet Chief Justice Castille did all of these things on the bench.

Nor can a law firm expect to be favored by a justice to whom the firm contributes, since judges have to expressly state their reasoning and cannot just rule for a firm's client. Nor can law firms be sure what kind of client they may be representing in the future.

The extraordinary case of Caperton v. Massey Coal Co., in 2009, shows just how hard it is to buy a judge. In Caperton, the principal officer of a firm with a $50 million damage judgment against it, Don Blankenship, spent $3 million on behalf of a winning West Virginia judicial candidate, Brent Benjamin, who was running against an incumbent justice seeking reelection. This sum exceeded the total amount spent by all of the other supporters of that candidate. The West Virginia Supreme Court ultimately overturned the $50 million verdict by a vote of 3 to 2, with Benjamin refusing to recuse himself. That judgment, however, was reversed by the U.S. Supreme Court.

There is a money problem threatening judicial races in America, but it is not the total amount spent. The problem is independent super PAC spending.

The actual conduct in the Caperton case illustrates this threat. Blankenship created a nonprofit corporation called "And for the Sake of the Kids" in order to force Justice Warren McGraw off the court and to replace him with Benjamin. The advertisements run by this independent group accused Warren of freeing a child rapist from prison. These ads were widely regarded as unfair and misleading. But they were effective.

Judicial races are uniquely susceptible to irresponsible advertising by outside groups. Every trial judge has released a criminal who went on to commit other crimes. Every judge on any court has ruled for an undeserving party, who nevertheless was right under the law.

A study published in 2014 by two Emory Law School professors and the American Constitution Society showed the growth of outside money and demonstrated that "soft on crime" ads in judicial races not only affect those elections, but even affect how judges rule on cases in the future. Judicial candidates do not run such ads. Only outside groups do.

That is why it is so important to keep independent spending out of Pennsylvania. And there is an easy way to do this.

Since Pennsylvania does not have campaign contribution limits in judicial races, the six candidates running for the Pennsylvania Supreme Court could agree among themselves to ask any outside groups who support them to simply contribute to the candidate's campaign rather than spending money independently. Even PAC contributions are permitted.

It is very likely that if so requested, outside groups would comply. If they did not, Pennsylvania voters might ask why a particular candidate could not control his or her own supporters. And if the rest of the candidates did not agree, the voters might be attracted to the one candidate who did make the pledge to keep out independent spending.

I hope that the six candidates who win in Tuesday's primaries will enter into just such an agreement. If this happens, the three who are elected will have democratic legitimacy because they will not have benefited from unfair campaign tactics. They will be better off as they begin their terms on the state Supreme Court, and so will the court, and so will the people of Pennsylvania.

Bruce Ledewitz is interim associate dean of academic affairs and professor of law at Duquesne University School of Law in Pittsburgh.  ledewitz@duq.edu