Though it might be difficult to deduce from usual media coverage, the vast majority of legislation and court activity in the United States occurs at the state level. Congress passed fewer than 200 laws in its last term, while state legislatures passed 24,000. Congress’ total output is actually smaller than the number of new state laws restricting abortion rights alone. In addition, state courts handle 98 percent of all cases in the United States. Such figures should trouble anyone, because forces that corrupt them and take advantage of their processes currently threaten state governments. The two main problems that currently threaten the legitimacy and efficacy of state governments are judicial elections and the enormous influence exerted by the American Legislative Exchange Council (ALEC) on state legislatures. Though the procedural side of politics can be cumbersome, especially at the state level, it is far too important to ignore.
Comedian and commentator John Oliver has addressed both judicial elections and state legislatures on his show, Last Week Tonight. His reporting on the problems with state legislatures before the 2014 midterm election revealed a stunning lack of transparency or ethical oversight of state legislatures. Few people know any of their state legislators’ names, and about 25 percent of state legislators ran unopposed last year. State legislators are generally allowed to decide for themselves whether or not a conflict of interest merits a recusal from voting – Oliver provided video footage of a damning anecdote – and an investigation gave “grades of D or F” to 28 states’ ethics panels. In his reporting on judicial elections, he found that 150 of 151 incumbent judges in Los Angeles County ran unopposed in 2014, and many of those who faced real opposition were forced to respond with ridiculous and tacky ads that have nothing to do with jurisprudence. One judge’s ad stated that he named his son “Justus,” while another featured someone playing the banjo and singing about the candidate. These elections also force judges to prove how tough they are on crime, which has troubling consequences for the constitutional rights of defendants. Oliver cited the example of an intense ad that portrayed an appellate court judge as a friend of criminals because he ordered three retrials due to unjust and unlawful procedures in the original trials. In addition, judges receive donations to fund their campaigns from lawyers and corporations, many of whom will appear before them in court. These practices create clear conflicts of interest and should raise serious red flags.
Some conservative commentators assert that the fuss over ALEC and judicial elections in liberal media outlets like Last Week Tonight is rooted in envy and the inability of liberals to create a comparably successful organization. While that claim may contain some truth, these institutions influence government operation in ways that a bipartisan consensus should be able to recognize as improper and unhealthy for democracy. In 2011, more than 25 percent of state legislators were members of ALEC. The New York Times has reported that ALEC is a tax-exempt organization registered as a public charity under section 501(c)(3) of the tax code. ALEC claims only to provide a forum for networking and discussion among legislators and businesspeople, but in reality it runs “a sophisticated operation for shaping public policy at a state-by-state level.” It even writes full-length model bills for its member legislators to use. The Times went on to say:
[Internal] records offer a glimpse of how special interests effectively turn ALEC’s lawmaker members into stealth lobbyists, providing them with talking points, signaling how they should vote and collaborating on bills affecting hundreds of issues like school vouchers and tobacco taxes.
In addition to lawmakers, ALEC counts many corporations among its members. This has recently included big names like Bank of America, Walmart, Verizon, and Microsoft. The Atlantic reports that ALEC has consistently promoted conservative bills such as voter ID laws, stand-your-ground gun laws, laws that roll back environmental regulations, and more. Occasionally, legislators forget to remove ALEC’s stamp from the bills they propose – for example, proposing a reduction in corporate tax rates in January 2012, Florida Rep. Rachel Burgin accidentally left “it is the mission of the American Legislative Exchange Council” on the document. Tax-deductible lobbying, funding legislators, feeding them bills: are these signs of a healthy and transparent democracy?
This type of corruption is not limited to legislatures. The judiciary – the branch of government generally assumed to be the most independent – is increasingly becoming subject to improper outside influence. Currently, 85 percent of state judges are elected. Even some of the judges elected under this system have spoken out against it. The Atlantic interviewed Wallace B. Jefferson, a retired Chief Justice of Texas’ Supreme Court. Despite being a Republican in a very red state, he criticized the process, saying “‘If a judge wants to remain on the bench, they have to find a way to reach the voters. And the only way to do that in Texas is in the media market,’ which means spending ‘hundreds of thousands of dollars.’” He acknowledged that judicial elections are supposed to make judges accountable, but he asserted that this fails because it turns into a partisan sweep, using Houston as an example:
In that one year in Harris County, there are probably 60 or 70 judges on that ballot. The voters have no clue about the experience or background of these candidates for office, and so what happens in Texas is that voters increasingly vote based upon partisan affiliation…This is raw partisan politics disguised as a system of justice.
Jefferson noted that, due to this kind of party line voting, Republicans won all statewide elections and Democrats won all but three Harris County races. The exceptions were hardly comforting: the three Democrats who lost Harris County races all had “ethnic-sounding name[s].” Furthermore, outside spending on judicial elections is rapidly increasing; unpopular decisions can lead to targeted attack ads from national organizations. Politico has reported that the increase in spending on judicial elections was pioneered in the mid-1990s by Karl Rove, and has gotten to the point where two Illinois judges raised $9.3 million in 2004 in an election for one seat on the State Supreme Court – “more than was raised in 18 out of 34 U.S. Senate races that year.” Organizations like JUSTPAC (in Illinois) have been formed for the purpose of influencing judicial elections – here is a list of some of their donors. These kinds of figures make a mockery of any claim to independence or impartiality by the winners of these elections.
Improper forces that have no place in popular government influence both the making of state laws and the interpretation thereof. Wealthy corporations and interest groups should not be able to purchase favorable judges, nor should they be writing state laws. Given that 99 percent of legislation and 98 percent of court cases are handled at the state level, it is essential that these processes be freed from the bribery that currently corrupts them. If citizens continue to overlook state governments and leave them in the hands of dedicated special interest groups, our rights and interests will suffer.
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