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 second of three posts:

Yesterday, I explained the consistent empirical relationship between campaign contributions to elected state supreme court justices and decisions by those justices in favor of their contributors’ interests. 

But why do judges predictably favor their contributors’ interests, controlling for other important things?  It might be simply that judges are skewed by gratitude or obligation for the campaign money they’ve received, an intuitive story of campaign finance influence that we might call a biasing story.  Alternatively, though, money might just align with judicial decisions as a result of a natural matching of campaign money with judicial candidates already predisposed toward their donors’ preferences.  Wealthy donors simply may have picked well in choosing whom to support in the first place, what we can call a selection story.

As an empirical matter, it’s actually hard to tell whether biasing, as opposed to selection, is going on.  Whether it’s biasing or selection, we’d expect judicial decisions to align with the donors’ interests, so it’s hard to figure out which is responsible.

Our book presents the strongest evidence so far of judicial biasing from campaign contributions, separate from selection.  We look at a special category of elected judge—lame ducks who can’t run for another term.  Most states impose an age limitation on state supreme court justices so that they can’t run for re-election at a certain point.  For this reason, lame ducks were elected and received campaign money just like other elected judges, so selection still matters. However, in their last term, these lame duck judges no longer can be biased by re-election concerns. They’re ineligible for re-election, so continuing to curry favor with donors for re-election purposes no longer applies.

We find that lame duck state supreme court justices, facing mandatory retirement, do not favor their campaign finance contributors in their decisionmaking anywhere close to the same way.  The effect of money drops off dramatically by roughly half to two-thirds for lame duck justices in their final term. 

This finding indicates that some biasing effect is occurring, because a selection account would not predict this dramatic change in voting behavior during the final term.  Of course, the influence of money doesn’t go away totally for lame ducks.  Selection matters enough that these justices still reflect their contributors’ interests to a degree, as we’d expect.  In short, money still matters, but it doesn’t matter nearly as much as it does for justices still eligible for re-election. 

We spend a chapter of our book considering, testing, and ultimately rejecting counter-explanations for our results, such as older age or state-specific characteristics.  We believe the best explanation of our results is that the possibility of running for re-election leads elected justices to approach their cases differently than lame ducks do, with a worry about raising support for their next campaign influencing their decisions, consciously or not. 

Tomorrow, in a final post, I’ll conclude by discussing the implications of our findings for judicial election reform.