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Public Citizen Challenges Constitutionality of Campaign Finance System for Judicial Elections in Texas

April 3, 2000

Public Citizen Challenges Constitutionality of Campaign Finance System for Judicial Elections in Texas

AUSTIN, Texas — Public Citizen today filed a lawsuit to challenge the constitutionality of a campaign finance system that allows candidates for election to state court judgeships in Texas to solicit and receive campaign contributions from individuals and lawyers who appear before the judges.

The suit seeks a ruling that the Texas system violates the right to due process of law guaranteed by the U.S. Constitution because it does not assure that judges are neutral and that they appear to be neutral. The suit was filed in federal district court in Austin.

“This lawsuit presents a real opportunity to correct a longstanding and serious problem in the Texas judicial system and similar systems in several other states,” said Public Citizen Litigation Group attorney Allison Zieve, lead counsel in the case.

Under the system in Texas, individuals may contribute up to $5,000 per election (primary, runoff and general election) to candidates for the state Supreme Court, for seven of the state’s 14 courts of appeal and for many of the state’s trial courts. (Lower limits apply to campaigns for judgeships in smaller judicial districts.) A law firm and its members may contribute a total of $30,000 per candidate in each election, and a political action committee (PAC) may contribute up to $300,000. Furthermore, an individual, firm or PAC may contribute to as many candidates as he, she or it chooses, including to opposing candidates.

Unlike every other state with partisan judicial elections, Texas specifically authorizes judicial candidates, including sitting judges, personally to solicit contributions. Moreover, judges are not required or even encouraged to step aside in cases in which the lawyers, parties, amici or others with special interests in the outcome contributed to their campaigns.

The U.S. Supreme Court has held that the right to due process includes a right to a tribunal that both is and appears to be impartial. Yet recent surveys conducted on behalf of the Texas Supreme Court show that an overwhelming majority of Texans (78%) and almost half of Texas judges themselves (48%) believe that campaign contributions influence judicial decisions. Because judges must raise money both to obtain their seats and to hold on to them, no judge can break free of the appearance of being beholden to contributors.

The lawsuit was filed on behalf of Public Citizen and its members, the Gray Panthers and its members, and several lawyers who practice in Texas state courts. The lawyer plaintiffs include both contributors and non-contributors to state judicial election campaigns. Although several business groups have spoken out in the past in opposition to the Texas system, several were asked to join the lawsuit but declined to do so.

Seven states (Alabama, Arkansas, Louisiana, North Carolina, Tennessee, Texas and West Virginia) have partisan judicial    elections at the trial, appeals and supreme court levels. Two more states (Michigan and Ohio) technically have non-partisan elections at all three levels, but the candidates usually run as partisans. Several of those nine states have contribution limits, although Texas’ limits are the highest, and Alabama has a recusal rule that acts as an incentive to limit contributions. Texas is the only state with partisan elections in which judges are expressly permitted to solicit contributions from lawyers and clients, including those with cases currently before the judge.

Although not the only state that holds judicial elections, Texas has become notorious across the country as a state where “justice is for sale.”

“We hope the lawsuit will result in a system in which justice is blind to campaign contributions, one that serves as a model ? not to ridicule ? but to emulate,” said Tom “Smitty” Smith, director of Public Citizen’s Texas office.