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Can't take the politics out of elections, even for judges

By PHILIP GAILEY, Times Editor of Editorials
© St. Petersburg Times
published August 18, 2002

For the past three weeks the Times Editorial Board has interviewed dozens of candidates for state and local offices as part of its homework before weighing in with its recommendations before the Sept. 10 primary election. The toughest calls -- for us and the voters -- generally are in judicial races. The candidates are appropriately under certain constraints in what they can say in a campaign, so the voters have little to inform their decisions beyond a candidate's reputation, legal experience and record of community service.

I keep thinking there must be a better way, but I also understand that most voters had rather elect their judges than entrust that responsibility to a lawyer-dominated judicial nominating committee that recommends a short list of candidates to the governor, who makes the final choice. Either way, it's a matter of politics. As a Georgia legislator once said, "You can't take politics out of politics."

That's true, but you can take the influence of money out of judicial politics. That's an argument the Alliance for Better Campaigns, a Washington-based organization dedicated to campaign reform, makes in its latest newsletter. It has less to do with trusting the judgment of the voters than with curbing the growing influence of special interests in the judicial election process.

Thirty-nine states elect judges, and it's not a pretty sight. Judicial contests are becoming a highly politicized and partisan affair in some states (it's not yet that big a problem in Florida). The Committee of Economic Development (CED), a business/academic think tank, said in a recent report: "While most judicial elections continue to conform to the traditional pattern of low-cost, civil affairs, many judicial races have become fierce electoral battlegrounds. Indeed, the more competitive judicial contests are now indistinguishable from gubernatorial and legislative contests."

Candidates must rely on attorneys and law firms and other special interests for campaign funds, which creates the impression that justice is being bought and sold. The U.S. Chamber of Commerce reportedly has raised more than $20-million, mostly from corporations, to elect business-friendly judges around the country. The money is being funneled through a tax-exempt group called the Coalition for Reform, Inc. And the voters think they're calling the shots.

Since most voters insist on electing their judges -- and that's fine with me -- the CED is recommending greater disclosure requirements for judicial candidates and their donors, public financing of judicial campaigns and longer terms of office for judges. Those recommendations are worth considering. If we can't change the system, maybe we can improve it.

Paul Taylor, executive director of the Alliance for Better Campaigns, raises an intriguing and larger question: Is our popular concept of democratic government, where the people rule, part of the problem?

He writes: "Americans are the world's hyper-democrats. We hold more elections, more frequently, for more offices than any other nation in the world. We are the only nation that conducts primary elections. The only one whose national legislature stands for election every two years. The only one that elects the vast majority of its judges. The only one that holds such a massive array of state and local ballot initiatives."

But isn't this what democracy is all about? Well, yes -- up to a point. Taylor, a former political reporter for the Washington Post, says the framers of the Constitution believed that subjecting judges to elections would undermine their independence and impartiality. And as for "direct democracy," or ballot initiatives, "their reading of history taught them it was unstable, unmanageable and prone to excesses by the majority. So they created a republic -- a "representative democracy' in which elected officials would govern by the consent of the governed."

According to Taylor, "two great eruptions of democratic reform" have undone the wisdom of the nation's founders. "Judicial elections came about during the Age of Jackson, part of a generalized popular revulsion against elites of all kinds," he writes. "Ballot initiatives came about during the Progressive Era, in reaction to the way Robber Barons had made legislatures to bend to their will during the Gilded Age."

Paradoxically, he adds, the election of judges and ballot initiatives, instead of giving more power to the people, have given more power to the special interests the reforms were supposed to restrain.

There is a popular assumption that ballot initiatives are a grass-roots cry for change. But the initiative process is increasingly a tool of wealthy special interests advancing their own narrow agendas in the name of the people. Ballot initiatives are expensive, and they increasingly depend on monied interests. According to the nonpartisan Ballot Initiative Strategy Center, more than half of all donations to state ballot initiative campaigns in 2000 were raised in donations of $50,000 or more. It is calling for greater disclosure so voters can see who is behind a ballot initiative.

For example, a group called "Consumers for Responsible Solutions" was formed to oppose an antismoking amendment on the Florida ballot this year. However, the group disbanded after it was exposed as a front for the tobacco industry.

Taylor may be on to something. Maybe we are overdosing on democracy.

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