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Are Judicial Campaign Donations Giving Big Business A Legal Advantage?

It may now feel like the norm in the United States, but corporations haven’t always spent millions of dollars to finance election campaigns. The Center for American Progress, a left-leaning progressive public policy research and advocacy organization, released a study conducted by their Director of Research for Legal Progress Billy Corriher titled ‘Big Business is Still Dominating State Supreme Courts’[1] in September of this year that took a look at six state supreme courts whose members received large campaign donations from special-interest groups (i.e., big business / corporations) in order to take a closer look on how these courts ruled in cases involving said special-interest groups.

According to the study, a key point of origin for the massive influx of corporate cash occurred in 1971 when then corporate lawyer, Lewis F. Powell Jr., sent a secret memo[2] to the United States Chamber of Commerce arguing that big business was under attack from what he referred to as “extremists of the left.” He feared that their influence in shaping policy put them at a distinct advantage over corporations who, at the time, weren’t contributing much to election campaigns. Powell, who was appointed to the United States Supreme Court later that year, suggested that:

“The Chamber . . . should consider assuming a broader and more vigorous role in the political arena. American business and the enterprise system have been affected as much by the courts as by the executive and legislative branches of government. Under our constitutional system, especially with an activist-minded Supreme Court, the judiciary may be the most important instrument for social, economic and political change.”

In 2000, the United States Chamber of Commerce turned their focus towards the state level and quietly launched a $10 million campaign[3] to get pro-business justices elected in Ohio, Mississippi, Michigan, Illinois, and Alabama, but those weren’t the only states whose supreme court elections saw massive cash donations. In their study, the Center for American Progress chose to turn their focus towards the six states that benefited from the highest donations – Texas, Pennsylvania, Ohio, Michigan, Illinois, and Alabama. Out of those six, only Pennsylvania justices ruled in favor of injured plaintiffs. Even with Pennsylvania’s numbers swaying the equation, those six supreme courts ruled in favor of corporate defendants in 71 percent of the cases used for the study.

The Problem in Texas

While each of these states have their own issues regarding campaign finances, Texas has introduced a number of complications that directly affect plaintiffs filing lawsuits over deaths and injuries caused by asbestos exposure. The U.S. Chamber of Commerce study focused on a wrongful death suit filed by the family of Joseph Emmite against Union Carbide – In the early 1940’s, Emmite worked to help install insulation containing asbestos, and remained with the company until 1979 when he developed a kidney disorder, among other ailments. A lung specialist diagnosed him with pulmonary asbestosis, and the suit claimed that Emmite was incapable of walking for the two years leading up to his death due to a deteriorated hip joint, had dementia, and lacked the ability to feed himself.

Just one month before Emmite’s death, then Governor Rick Perry signed a bill requiring, among other things, that plaintiffs suing over asbestos-related injuries or deaths must include a pulmonary function test to have their claims considered. Using this new legislation, the Texas Supreme Court threw out the family’s lawsuit because the physician’s report lacked this test despite the fact that the lung specialist testified that Emmite was both mentally and physically incapable of performing the test in question. In addition to the specialist’s testimony, Emmite’s family attempted to argue that the new law violated the Texas Constitution by retroactively affecting their case. The court agreed that it did in fact retroactively affect the case, something prohibited under the state’s constitution, but reaffirmed their decision to throw out the case.

According to the Center for American Progress’s study, the Texas Supreme Court ruled in favor of corporate defendants 69 percent of the time, and some of the largest campaign contributors actively advocate for tort reform laws intended to limit plaintiffs’ ability to sue.

It’s important to note that the connection between voting records and campaign contributions may be related to the fact that donors seek out judges who already vote in favor of their interests. In 2013, Emory University professor of law and economics Joanna Shepherd-Bailey studied thousands of cases heard by all 50 state Supreme Courts for an American Constitution Society report titled ‘Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions’[4] and found that:

“The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court. Notably, the analysis reveals that a justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.”

Whether campaign donations have created an imbalance of power stacked in favor of corporations or not, it’s clear to see that hiring a knowledgeable and experienced attorney is possibly the most important step to take when preparing to file your claim. At Bailey Cowan Heckaman PLLC, our Houston attorneys are prepared to fight for your rights and secure you the compensation you deserve, no matter who is sitting behind the bench. Give us a call or fill out our online form to begin your free case evaluation today.

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