I am pleased to welcome Michael Kang to ELB Book Corner. Michael, along with Joanna Shepherd, is author of the new book, Free to Judge: The Power of Campaign Money in Judicial Elections. Here is the first of three posts:

Thanks to Rick Hasen for the chance to introduce my new book Free to Judge with Joanna Shepherd.  Listserv members may know my work in election law better than my empirical work on judicial behavior, but Joanna and I have spent the last decade studying the relationship among judicial campaign finance, judicial elections, and state supreme court decisions.  Roughly 9 out of 10 state judges face some sort of judicial election either to reach office or keep it, and to paraphrase Justice Scalia, judicial elections mean judicial campaigning, which means judicial campaign finance.  In our book, we document how judicial campaign finance influences and, we argue, actually biases state supreme court decision-making.   

As a basic matter, when we look at the broader pattern of data on campaign finance money and judicial decisionmaking, we find a robust and statistically significant relationship between campaign contributions and elected judges’ decisions in favor of contributors’ interests over a wide range of cases.  The details are in the book and our articles, but we find, for example, that business groups successfully influence state supreme court justices to favor their interests in business cases, controlling for other important factors.  We look at contributions from the broader left and right ideological coalitions and find that money from these coalitions predictably influences decisionmaking toward their respective ideological positions across the spectrum of cases.  We look at contributions from political parties and find that their money is associated with decisions in favor of their candidates in election cases.  That’s just the basic landscape.

We do not argue that money is the only thing that matters in judicial decisionmaking.  Of course, law matters because judges want to apply the substantive law as faithfully as they feel they can.  There are certainly many cases where basically all judges agree, regardless of party, ideology, and campaign money, that the law is clear about how the case should come out.  Many other cases are harder calls, and judges do disagree about how the law applies and how those cases should be decided as a matter of law.  This is where party and ideology, among other things, matter most.  But campaign money matters too.

Why does the money matter?  How does causality work here?  When we’ve presented our work, this question would inevitably come up, and someone always argued that judges might not be influenced (i.e., biased) by campaign money, but instead selected by the money.  Smart contributors may have simply picked well in giving money to judicial candidates who they accurately discerned would decide cases as the contributors want.  The money aligned with judges’ decisions, not because the judges were swayed by the money, but because the contributors and judges were aligned together from the start. 

It’s this question that became the focus of our book.  We realized that we had interesting data that told us a consistent story on this point, which I’ll address tomorrow.