by Jamel Rowe
Corruption—the dark side of politics— is a problem that legislatures and the general public have been battling since the creation of the United States government. Recently, Pennsylvania made the eradication of corruption in judicial elections its primary goal by introducing House Bill 1815 and House Bill 1816 to the General Assembly.
In Pennsylvania, candidates for the appellate and trial court must run in partisan elections and, consequently, must affiliate themselves with a particular party. Then they must be elected by popular vote. Proponents of judicial elections support the system because they believe it promotes accountability. They argue that judges, who routinely make policy decisions, are in essence legislators. As a result, judges should be held accountable to the public just like legislators; if they fail to live up to their campaign promises, the public should have the ability to oust them from office.
In contrast, opponents argue that partisan elections inhibit judicial independence which breeds corruption. As many people know, election campaigns are expensive. To pay for the television and newspaper advertisements necessary to win elections, candidates receive funds from various sources, including the political party whose ticket they are running under and, disturbingly, the litigants and lawyers who appear in front of the judge. Because Pennsylvania does not require judges to recuse themselves from cases involving campaign contributors, the potential for corruption is high and the judge’s impartiality is questioned.
Lack of informed voting is yet another problem prevalent with judicial elections. There are multiple explanations behind voters’ ignorance of the candidates and the issues. First, media coverage of judicial elections is minimal in comparison to gubernatorial and General Assembly elections. Second, Pennsylvania rules of conduct prohibit judges from stating their opinions on disputed issues to the public and, therefore, voters have no idea where the judges stand on controversial topics. Third, those who know that judges are engaging in questionable conduct fail to adequately notify the public. For example, the Philadelphia Bar Association annually investigates judicial candidates, and this year it gave a “not recommended” rating to five candidates. One “not recommended” candidate was Traffic Court Judge Michael Sullivan whose home and office was previously raided by the FBI. Surprisingly, the voters permitted Judge Sullivan to retain his position in the 2011 election season. If the bar association made the information more readily available to the voters via advertising or distribution of flyers, its likely that the voters would not have allowed Sullivan to stay in office.
In light of these problems, legislators introduced a bill which would change the selection process from a partisan election system to merit selection. The merit selection system would require, among other things: (1) creation of a citizen’s nominating commission, which would screen, evaluate, and recommend qualified appellate court candidates to the governor; (2) gubernatorial nomination of a candidate from the commission’s list; and (3) Senate confirmation of the candidate. Supporters of the bill believe that eliminating campaign finance will remove corruption from the selection process altogether.
At first glance, it may appear that the bill will eventually become law simply because corruption is a major concern among the citizens. In one survey, 76 percent of those polled believed that campaign contributions influenced judicial decision-making. Nevertheless, there is a high probability that the partisan election system will remain in place. Erwin Chemerinsky, a world-renowned constitutional law scholar, points out that in states where judicial elections were on the chopping block, voters have consistently rejected the legislature’s attempts at reformation. As a result, Chemerinsky suggests that legislatures focus on limiting the amount contributors can provide to a campaign, thus decreasing the likelihood of corruption while retaining the benefit of accountability.
With the public and numerous advocacy groups afraid of corruption, one thing is clear—something must be done. What is less obvious, is the best means of eliminating this problem. Hopefully, as time goes on, the proper pathway to a fair selection system will become more apparent.
Jamel Rowe is a third-year law student at William & Mary.