Ensure an impartial judiciary with public funding of elections

The problem is not hard to state:

• We all want fair and impartial courts — in a free society, the very concept of the rule of law requires judges who are impartial, objective, disinterested and unbiased, but;

• Poll after poll has told us what common sense confirms: that when elected judges are seen as beholden to large campaign contributors, both the reality and the appearance of impartiality can suffer, and;

• Large campaign contributions are escalating dramatically in Washington's judicial elections. They almost quadrupled in 2006, and, as we all remember, most of the increase seems to have been used for highly personal attack ads which conveyed little if any relevant information to voters.

The problem is obvious — money is compromising the appearance, if not the reality, of judicial impartiality, the bedrock foundation of our court system. Our Legislature has begun to respond.

Rep. Shay Schual-Berke, D-Normandy Park, and others have introduced House Bill 1186, which would provide for a six-year pilot program for public funding of state Supreme Court and Court of Appeals elections for any judicial candidate who could show substantial support for his or her campaign and who would agree not to spend beyond the funds provided. The level of public funding is set at about the traditional (pre-2006) cost of judicial election campaigns.

This is not a new idea. Several other states provide public funding for elections, and where it has been used for judicial elections the results have been impressive. Public financing is entirely voluntary and it is available for any qualifying candidate who agrees to the limitations on campaign expenditures.

Public financing is also entirely neutral — it has been used by conservatives and liberals, men and women, minority candidates, incumbents and challengers. It has successfully reduced the flow of special-interest money into elections.

Still, the idea of public funding has its critics. Some say that an impartial judicial system is simply not possible — that courts are political institutions and can never be impartial. That argument dangerously misunderstands the role of law in a free society. It is imperative to appreciate that judges are not legislators. We want and expect our legislators to be biased in favor of voter preferences. That is democracy.

But the judge's role is quite different. The judge's job is to resolve conflicts in the interpretation and application of laws enacted by the Legislature. Judges have limited policy-making authority and even that is never final. Legislators (or the people) are always free to rewrite a law if they believe a judicial interpretation is wrong.

Properly viewed, the judge's narrower job is impartial conflict resolution. We must protect that impartiality, the fairness it provides and the public confidence it inspires.

Still others say that public funding will entrench incumbents and thus be unfair to challengers. To the contrary, in other states publicly financed challengers have defeated incumbents. Common sense suggests that public funding would benefit many challengers, since they are not likely to have a history of contacts with major funding sources. To many otherwise qualified challengers, public support will be a welcome admission ticket into the arena.

While this plan has been carefully designed, the concept is new to Washington and there are the usual uncertainties. But no change is risk-free, and solving real problems is seldom accomplished by waiting for perfection.

We need to get our relative priorities in order, to understand that some things (and some arguments) are more important than others, and to appreciate that now and then we have to accept some change in the status quo as the price of accomplishing our most important goals. Ensuring our citizens the fairest and most impartial judicial system possible is just such a goal.

William R. Andersen is Judson Falknor Professor of Law Emeritus at the University of Washington School of Law, ander@u.washington.edu