ELB Book Corner: Michael Kang: “Getting Rid of Re-Election: A Single Term Limit”

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 final of three posts:

Earlier I explained that biasing seems to explain a significant portion of the predictive relationship between campaign contributions to judges and subsequent judicial decisions.  We found that the influence of campaign money dropped off dramatically for lame duck judges, ineligible for re-election in their final term, compared to other elected judges.  When the possibility of re-election is taken off the table, our lame duck judges in their final term no longer display the same influence of money. 

We weren’t focused on causality when we started studying judges.  We guessed both selection and biasing were at work, and either way contributors get what they wanted from the judicial system, which by itself was a fundamental worry.  That said, there is greater normative concern with biasing than selection.  Under a selection story, at least judges are deciding cases the way that they think is correct under the law.  Under a theory of biasing, though, judges are deciding cases differently, even incorrectly in some sense, than they otherwise would.  Consciously or not, judges would be doing their jobs differently in favor of their contributors so they have a better chance of winning re-election and keeping their jobs. 

Our findings therefore challenge the basic logic of Caperton v. Massey.  In Caperton, Justice Kennedy was focused on the human tendency toward reciprocity, toward returning the favor of campaign finance support in the form of friendly judicial decisions in contributors’ favor.  But we find it’s prospective concerns looking forward to the next election that loom large, not retrospective gratitude about the last election. 

Fortunately, we think our findings suggest a politically feasible solution for reducing the influence of campaign money on elected judges.  We endorse a reform approach targeting judicial re-election as campaign money’s main influence on judges.  Of course, getting rid of judicial elections altogether would solve the problem, as would lifetime appointment along the federal model, and perhaps other proposals as well.  No proposal is perfect in terms of insulating judges from political influence, and we underscore this point in the book.  

Ultimately, however, we don’t think judicial elections, so popular with the public, are likely to go away.  Instead, we endorse a single term limit for a 14-year elected term as a feasible reform that goes a long way in addressing the influence of money in judicial elections.  A single term limit offers an achievable reform that maintains judicial elections as the initial means of judicial selection but removes re-election incentives from judging.  As we explain in the book, a single long term also can be designed to leave largely unchanged the career incentives for state supreme court candidates and the nature of the job.

In the end, we aren’t doctrinaire about the reform specifics, which implicate lots of other values and institutional considerations, but the important lesson from our work is that re-election of judges, not judicial elections as a general matter, is the primary problem with money in judicial elections. 

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