Janus Capital Chairman Emeritus Landon Rowland is worried about the corrupting influence of money in politics. This is not so unusual, except for two factors. Rowland is a mild midwestern businessman, the type of sober fair minded moderate who doesn't express concern lightly. And Rowland's concern isn't bought politicians, but bought judges. Rowland believes that corruption in our courts, as usual spearheaded by money in elections, is slowly wrecking our economy. What makes America a great place to do business is the certainty provided by a world class court system that makes sure the rules of the road apply to everyone equally. This, he believes, is now in jeopardy.
I've written before about the unholy alliance of business and state that sells our elections and our legislative process to the highest bidder. That same unholy alliance is corrupting our courts through a deep and effective campaign to buy off judges the way that our politicians have been purchased. Rowland pointed this out in a 2009 op-ed opposing a significant change in the way that Missouri judges are chosen. Currently, the state has a nonpartisan commission of experts that screen judicial candidates, and then the governor picks among them. The electorate gets to vote judges out of office through "retention elections". This protects the independence of the judiciary, and ensures that judges don't have to go begging to corporate interests for campaign solicitations. This "Missouri Plan" was implemented to ward off machine corruption in the 1940s, and is so successful that it is in use by 24 states.
A system like this works because it creates visibility, integrity, choice, and aligned interest. Experts credential candidates, elected public servants choose from among those candidates, and voters get a veto of those candidates through elections. The interests of all parties is aligned as there is legal integrity with a democratic check, and the visibility provided by an electoral campaign. Yet, judges, though elected, are not reduced to begging for campaign cash from people over whom they might have power. It's not a perfect system, but it provides a basic modicum of justice through a mix of professional norms, transparency, and elections.
So of course, corporate backed groups are now trying to end this "Missouri Plan" in favor of straight up judicial elections. And this is where the perversion of campaign finance corruption comes in - when money equals speech, elections become auctions. In the past ten years, the amount of money in judicial elections has doubled. Just ten organizations spent 40% of all money on state high court elections. Last year, the Supreme Court legalized unlimited amounts of corporate and labor cash in elections through its Citizens United, and now the amount of secret money flooding into these elections will skyrocket. This aligns the interests of judges not with citizens, or legal experts, but with those who can pay. Justice is now an auction, and the goal of the vampire industry who control vast sums of capital is to make sure the scales of justice weigh nothing but gold.
Consider the key case cited by most experts in West Virginia showing the cost of judicial corruption. Rowland notes:
The CEO of A.T. Massey Coal Co. spent $3 million to elect lawyer Brent Benjamin to the state Supreme Court, while Massey Coal was appealing a $50 million jury award against it. Even after repeated requests from the petitioners, Justice Benjamin refused to recuse himself, instead casting the deciding vote to overturn the $50 million judgment.
This is simply bought justice. The U.S. Supreme Court agreed in a narrow 5-4 decision, arguing that Benjamin's refusal to recuse himself violated due process. That's how bad it is, where the election of judges with corporate money is itself a named factor by the Supreme Court in biasing judicial outcomes. And this case took place before Citizens United.
The attack though isn't simply at the state level. Supreme Court Justice Clarence Thomas's wife took $680,000 in payments from a corporate funded think tank. Thomas didn't disclose this money as family income, as the law required. Thomas was of course a vote for Massey coal. These kinds of what-look-like-bribes are become more and more routine. "Judicial junkets" are now all too common; during these junkets, judges are now given lavish corporate vacations under the guise of education, and even have investments in industries with significant decisions pending before their courts. Talk about misaligned incentives.
And in our regulatory agencies, the courts are being corrupted as well. One judge for the Commodities Future Trading Commission promised the person who appointed him that he would "never rule in favor of a complainant." And the person who appointed him? Wendy Gramm, the wife of deregulatory king and former Senator Phil Gramm. And indeed, he has never ruled for an investor. This does not inspire faith in our business environment.
Massive election spending, junkets, overt payments while in office to family members, conflicts of interest and pre-appointment deals -- this are the kinds of tactics that have bought our Congress and separated us from our government. That this is taking place in our courts is not surprising. The same forces are buying our courts that are buying our politicians. That want to lock us in a national prison of injustice, and call it a democracy. They look at an auction, and call it an election. Visibility, integrity, choice, and aligned interest, four elements I use to test the resilience of a political system -- they are all increasingly missing from our corporate funded courts.
Historians refer to the late 19th century, during the first robber baron era, as the state of courts and parties. It was a brutally partisan era, with frequent violence at the polls, the murder of union organizers by corporate backed security forces, and child labor. The courts were forums of power, not justice. Political machines, corrupt puppets of railroads and racists, dominated courthouses and used them to control elections and the business life of the nation. American capital markets were incredibly corrupt, with frequent market rigging and booms and busts caused by rampant use of insider information. This is where we are heading with unlimited corporate cash flowing into the court system.
There is currently a large debate over the question of whether the 99% are served by this system, or whether the 1% have rigged it in their favor. The people in the streets at Occupy Wall Street feel a deep injustice over this system, but mostly they focus on Congress or politicians. They believe that our political institutions lack integrity. Our courts have as of yet been exempt from this level of scrutiny, but what we're seeing with this corporate attack on judicial integrity is that a lack of aligned interests, secrecy, and corruption are eroding faith here as well. The secrecy, the money, the lack of visibility over how judges are chosen, the lack of aligned interests -- it's all a part of undermining justice. Every court in the country has justice as its putative goal, every judge in the land should see these people as aligned with their job. Many judges do see their job as one of protecting and preserving justice in America. But increasingly, the incentives in the system cut against such a noble attitude. As we expose the forces trying to turn our courts into a forum for bought justice, we will eventually help everyone understand what Landon Rowland does -- justice corrupted by money is justice denied.