Frontline; 1807; Justice for Sale

? Tonight on Frontline, Justice For Sale, is campaign cash corrupting our courts. In 39 states, many judges are elected, not appointed.

And like all candidates, they need money to win. People don't pour money into campaigns because they won't fare an impartial treatment. They put money into campaigns because they want things to go their way. We are in a system where elections can be bought. Correspondent Bill Moyers investigates who's contributing and what they get in return. In a rare public interview, two U.S. Supreme Court justices speak out. Money in elections presents us with a tremendous challenge, a tremendous problem. And we are remiss if we don't at once address it incorrectly. Tonight on Frontline, Justice For Sale, is campaign cash corrupting our courts. In Rook's Fair, Pennsylvania, one of the rituals of democracy is the election of county judges.

Once upon a time, campaigning for judge was a low-key, even courtly affair. Not anymore. District Attorney Peter Paul Ochevsky knows that if he wants to become a judge, these days he has to campaign like a politician, own television. As District Attorney, Peter Paul Ochevsky considers it his duty to fight crime. The opinion is expensive, okay? And action. Television is very important in any kind of an election. You're just not a real candidate if you're not on television. My experience in the judge races that I've handled is that TV has been the vehicle for getting these men elected. As District Attorney, Peter Paul Ochevsky considers it his duty to fight crime. Ten years across the TV, Ochevsky has an idea. Ochevsky has to raise money.

And where does the money chase the campaign? To the very lawyers who may one day appear before him in court. And I look forward to that first time. And I have to say you're on it. I really am. I do know that was the greatest thrill. We're really looking forward to having on the bench. I think it's going to be very exciting over the next ten years after you're elected, hopefully right here in the primary, to have you working with us to try to, shall we say, do justice here in Northeastern Pennsylvania. Thank you for coming here tonight. Yes, Tom Burt is already on the court. To hold off a strong challenger, he reckons he'll need to raise $250,000. That means a lot of time. You choose to enter a campaign. And one of the first things that he realizes, this is all about selling yourself over the next six to 12 months. It's almost like an impulsive buy at a supermarket.

That's how people vote based on emotion. We have spent an inordinate amount of time, a group of $1 million, enabled Judge Berks to afford a high-price media consultant and commercials that are ready for prime time. Am I concerned with having the most cinematic music that I can possibly have behind radio spot? Am I concerned about what the light looks like when our candidate walks into a courtroom? Am I concerned about how he looks that we present him the way he should be seen by the voters as a dignified, wonderful, humble, hardworking, incredible deserving of your vote kind of guy? Yes, I do. They are emotional ways, emotional angles that I go in. And yes, people do vote based on that. Every day, Judge Tom Burke brings a lifetime of experience to his Luzern County courtroom. As a father at five, he's concerned for the future of our children. As your Judge, Tom Burke is committed to seeing that those in his courtroom are held accountable for their actions.

Vote for Judge Tom Burke. Hey, Mr. Gap, thanks for coming out here. Thank you. Meanwhile, back in the time, the challengers must hunt for voters the old-fashioned way, and shaped by handshake. This will judge Fred Peer Tony, who's named Coleman, does his fundraising with Frankfurt. After this election, I won't let your hot dog for at least six months. The proceeds from his fundraisers are modest, and he can afford only the most basic and noise in the paint commercial. Over 25,000 cases in seven years. Assistant District Attorney, five years. District Justice, seven years. Judge Peer Tony, the experience you want. Peer Tony, the people's judge. Going on the bus? My name is Virginia Merrick Cowley. Virginia Cowley is also short of fun. Her hopes depend on Ken Folk and the public's sweet tooth.

Virginia Merrick Cowley on my name is Judge. There's a lot of cookie to remember me by. Her low-budget commercials are as down-home as her recipe. There are really just a couple of points that I'd like to hit in the commercial that needs to come out of your mouth. One of them is Virginia is one tough cookie. People are talking about Virginia Merrick Cowley for judge. Virginia is one tough cookie. Protecting our children, our senior citizens, keeping our neighborhoods safe. That's what this job is all about. Vote for Virginia Merrick Cowley judge. What it has become is the ability to buy the seat. If you can, if you have a half a million dollars, you can basically go out there and get your name on TV so many times that you will have bought yourself a job for the rest of your life. Even though there is no kind of scandal in this election, sure enough, the winners for the two open seats are the candidates who raise the most money and made the most expensive TV commercial.

It's a system that disturbs even the winning media consultant. Other people who are in my profession will be ready to kill me. I don't care. I think that the amount of money flowing around out there to get people judicial seats is obscene. It's on fair and people are ending up with a chance to be on a bench who have no business being there. I really believe that we are in a system where elections can be bought. It's sad. We've come a long way from the founding fathers who thought judges should be apported on merit, not elected. They wanted the judiciary, the third branch of government, to be a check on the other two, to be neutral, independent, and fair, beholden to no one. That's why in most of the original 13 states, judges are still apported. But as the country grew, populist passions prevailed.

The Jacksonian Democrats in particular wanted to elect judges. So today, we have 39 states where voters do just that. But like campaigns for governors and legislators, those campaigns for judges require money, lots of money. That's what concerned the Pennsylvania Supreme Court. So they appointed a commission chaired by Philadelphia Attorney Jim Mundy to investigate the election process. When we made the quantum leap to media campaigns and judicial elections, we lost perspective. And now you see contributions of 1,000, 2,000, 5,000, 10, 15, 25,000. I think that changes the whole ball game now. It takes over a million dollars these days to get elected to Pennsylvania Supreme Court. And there are no limits on how much an individual can give. This throughs for business lobby is raising money to bankroll candidates for the court. We actually got involved in judge campaigns back in 1989.

And we realized from our own civics 101 that there's three schools. The government's one is executive, obviously, the legislature, both of which we play very well in. And Pennsylvania, the odd number of years are the judicial elections. In 93, 95, and 97, we got involved in Supreme Court campaigns. Senator, how are you? Thank you. Having fared well with the state legislature, Bill Cook's outfit is now determined to elect a state Supreme Court, which would be sympathetic to business interests. Generally, the idea is it's a whole lot easier to elect people who think like you than it is to educate them once they've been elected. And there are issues that we want the legislature to pass, that we want the governor to sign into law, and we would certainly like to have justices find those issues constitutional when they come before them. The perception that special interests are buying favor with judges prompted the Pennsylvania Supreme Court to conduct a public opinion poll. What we found is that people believe that money buys judicial favor. 89% believe that most of the time, some of the time, or all of the time, judicial decisions are affected by monetary contributions.

If we had no other data than that, we would know we had a problem. The fear that campaign contributions are undermining judicial integrity has prompted two members of the U.S. Supreme Court to speak out in a rare public interview. The concern that each of your express was in particular about campaign contributions to judicial races. Why do you see that as a threat to independence and neutrality? In part, it's because the campaign process itself does not easily adapt to judicial selection. Democracy is raucous, hurly, burly, rough and tumble. This is a difficult world for a jurist, a scholarly, detached, neutral person to operate within. Now, when you add the component of this mad scramble to raise money and to spend money, it becomes even worse for the obvious reason that we're concerned that there will be either the perception or the reality that judicial independence is undermined.

And independence doesn't mean you decide the way you want. Independence means you decide according to the law and the facts. Do not include deciding according to campaign contributions. And if that's what people think, that threatens the institution of the judiciary. To threaten the institution is to threaten fair administration of justice and protection of liberty. New Orleans, Louisiana. In the city they call the Big Easy, money has been known to buy elections. And that's exactly what's got a lot of people worried. That justice, too, might be a prosaille. For 25 years, Chief Justice Pascal Caligaro has set the standard for what a judge should be. A premier lecture on the sphere of fair, the Chief Justice of Louisiana Supreme Court was parted by a business group.

The Bureau of Louisiana Association of Business and Industry to the judiciary is lobby setting higher standards. They consider his voting record on the court anti-Beyanas most outstanding judge. We don't pick our opponent slightly when we make selections of people to target for replacing on the bench. The primary way we made the selection was tracking all decisions the Supreme Court had made over the last 25 years. So we drew the 25 year history, 50 cases, and determined how each one of the judges had voted on the merits of those cases. Chief Justice Pascal Caligaro had a 3% voting record. Now that's totally unacceptable to the business community way of thinking. Justice Caligaro dismissed the charge that he had voted in favor of business only 3% of the time. He said lobby was using a highly selective and distorted measure to rate him. I've cast 50,000 votes in 25 years on this court. If you want to go back and look at and pick and choose the cases in which you think that a given vote was wrong or indicated a leaning of some sort, it's very easy.

He complained that she had hand-picked the issues. Well certainly I hand-picked the issue. Was I going to let him pick the issues? He encouraged his daughters to run by running with them. Lobby had the money. Now all they needed was some off-spendent values. The first thing is to find a good candidate. And we really worked for a long time to find Chuck Kusamon. He had been in the legislature. He was a setting judge in Jefferson Parish. He was an aggressive, vibrant candidate. In fact, a lot of judges are too judge-ly to run. They like to hold court in a corner of a cocktail party or a fundraiser. But Chuck I guess because he had been in the legislature, he had a lot more good campaigning skills. Lobby had previously elected two Supreme Court justices. He had poured a lot of money into their campaigns.

And now had determined to get rid of this chief justice who had been fair to both sides, all of his life. But the business community now does not care about the credentials or the qualifications of the candidate. They care about one thing. How will you vote? Will you vote with us? And so they chose to go out and get a candidate that would be completely aligned with them. I understand business. I understand people. I understand victims of crime. With money from Lobby and other business groups. Kusamon went on the attack. A victim of sexual abuse diagnosed with gonorrhea. He had repeatedly done to her. She identified her molester. The trial court convicted Supreme Court upheld the conviction. Pascal Caligaro disagreed. Saying looking at molester's medical records was an invasion of privacy and stated my consider-view now is that the conviction should be reversed. Caligaro says he deserves re-election. What do you think he deserves?

It used to be that you didn't attack the candidate. That was especially true in judicial races. Nowadays it's attack, attack, attack. And that lays at the feet of the business community. They started the attacks and they just, I mean, they lay it on against the chief justice. A guy that has given his life to public service in Los Angeles. Been involved in no scandals and no corruption. And then they have the business community because of. There's a story you need to know. A story about a small town called Convent. Along the Mississippi River in St. James Parish. When I was raised in this area, everything was beautiful. They have nice beautiful green grass, all beautiful trees. It's almost like a paradise. It's a unique area actually around the world. The soil is so fertile and the landscape is so green.

You could grow anything here, any fruit vegetable seed bearing plant, fruit bearing tree, catch any kind of fish or shellfish. We had crawfish ponds and daddy used to have shrimp boxes and a river. And we were able to eat the shrimp, the river shrimp in the river and the fish. But we're not able to eat it now because it's all polluted. This stretch of the Mississippi River between Baton Rouge and New Orleans is known as the chemical corridor. Seven major all-refineries and hundreds of chemical and other industrial sites make this one of the most polluted places in the nation. Locals call it Cancer Alley. Governor Mike Foster, a wealthy businessman with a Cajun accent and a good old boy style, was elected in 1995 on a platform of attracting more industry to Louisiana. In this ad in the Wall Street Journal, the governor proclaimed that Louisiana is bending over backwards to attract new companies with promises of tax breaks and legal protection from lawsuits. We've got just about every kind of chemical plant that you can imagine here. Most of these chemicals are either known cancer causing chemicals or they're suspected to cause cancer in humans.

Right now I have a father-in-law that's dying of pancreatic cancer. I lost my mother at 57 from cancer. My neighbor died of cancer. The next door neighbor to us, my aunt behind us, all died of cancer. And they know that these chemicals cause these illnesses and yet they continue to power that on top of us. Encouraged by Governor Foster, Shin Tech, a subsidiary of a Japanese company, announced plans to construct a huge $700 million polyvinyl chloride plant near Convent. The governor was delighted and his Department of Environmental Quality quickly approved the Shin Tech plant. Then something unexpected happened. Residents of Convent banded together to try to stop it. People in Convent, we got sick and tired of being sick and tired, now that's bottom line. Enough is enough. We have a Department of Environmental Quality, but where's the quality? I mean they have to start looking at the quality of life.

And there's ways to do it. If they only enforce the law system on the books now, we won't have all the problems we have today. But what they're doing is overlooking the problems. Or when they do the inspections, it's covered up. Let me tell you first where you are here in Louisiana, which is just different. And here and it's all bad. We have plants in Louisiana that discharge into the Mississippi River single plants that discharge more than all of industry discharges in the state of New Jersey. We have three or four plants that out do Ohio. And we have world-class pollution here. The contamination levels that go into the Mississippi River are phenomenal. And, unlike other states, we drink this river. Oliver Houtt founded the Environmental Law Clinic at Tulane University in New Orleans, where he teaches law. He teaches at the clinic, often provide legal services to people who couldn't otherwise afford it. The state Supreme Court has allowed this student lawyer assistance for almost 30 years under a regulation called RU-20.

The low-income residents of Convent could not afford to hire lawyers to fight Shinteck. Instead, they turned to students at the law clinic. When Shinteck came in, we raised the issue head on, is this environmentally just? This is a heavy polluting plant. It's right in the middle of a community that has already got six other plants overloading it with these same chemicals. If you look at the levels of contaminants these people are breathing. They're like a hundred times what people breathe in the United States. They're more than 20 times what people breathe even in the chemical quarter of Louisiana. I mean, this is just astronomically unfair. At first Tulane was apprehensive about challenging a powerful corporation and a popular governor. But the Convent Group persisted, and the law clinic finally decided to take on the case. In the beginning, of course, I had thought that, well, the chances just objectively, the chances of winning this case, as winning to them meant that the plant wouldn't come at all, were slim.

Considering everything that was against us in terms of the administration, and as I started going to the meetings, just the level of conviction that they had started actually convincing me, you know, we may actually have a chance in. We have come together here in the face of a terrible evil, the pollution, contamination, and destruction of the only environment we have had is extremely smart, extremely savvy. She thinks like a lawyer. We filed an environmental justice petition. We've also filed a Title VI administrative complaint, which is a civil rights complaint, and there are perhaps more actions that are going to be filed. While the students were teaching their clients about the law, the Convent folks were giving the students a lesson in the real world of Louisiana politics. We always hear that a committed group of individuals can accomplish anything, and I'd always heard it, but, you know, if you don't have the personal experience, you think, right.

And they did. I mean, this group accomplished something that no one would ever have given them any chance of accomplishing them as first started, including myself. In 1997, the Environmental Protection Agency ruled in favor of the Convent residents, saying the proposed Shintag factory failed to meet air pollution standards. Shintag's a great victory, a huge victory. I mean, it's a big win, but the governor's not about winning like that. The governor's about making sure that the clinic doesn't get in the way anything he proposes again. It's revenge time. There's nobody likes this, but the Tulane Lockling. They're all on to themselves. They have decided that they will decide who comes to Louisiana and decide under what rules. I mean, it's almost like they are the vigilantes out there doing this on their own, and I don't think it's right. And I'm going to encourage anybody from Tulane to do what they can to put a stop to it, and I can tell you this.

I'm going to look differently at Tulane from a perspective of having major tax breaks. If what they're going to do is support a bunch of vigilantes out there, they can make their own law. So he came down here to New Orleans, and he told among other things that Chamber of Commerce and our alumni not to contribute money to Tulane. He went to the state legislature and threatened to introduce legislation to eliminate Tulane's tax exemptions. Tell them to spend their own money and do it, which spending Tulane is. How's that? Who's the bully? The big fat professors drawing the big salaries, trying to run people out of the state to Texas? Or me who's saying, please come to Louisiana, give us some jobs, jump through the hoops and do it right. It's sad to think that some of that rhetoric would be believed because there are so many out there who have real problems and who have real health problems associated with pollution and who do want to do something about it. And who don't make enough money to be represented by lawyers? And we provide a service, which I think we should be commended for.

And instead, you know, we've just been attacked basically because we've been effective as far as I can see it. If we don't do it, it doesn't get done. They knew that. But they can get us out of the game. It doesn't matter if there's environmental law. It'll just never be applied to them. So this is sweet. They don't have to go to Congress and repeal any law. All they have to do is repeal us. The governor and his allies did not want the Tulane law clinic to stop another shinte. To restrain the students, they had to convince the state Supreme Court to change Rule 20, which brings us back to Chief Justice Kelligero. The Louisiana Association of Business and Industry sent a letter to the Chief Justice asking him to revise Rule 20 to restrict the Tulane students. The environmental clinic, they said, is bad for business. As a matter of fact, a whole group of business organizations, besides LABI, the New Orleans Regional Chamber did. The business council of Orleans did and some other organizations, I believe, did ask that the rule be changed.

This put Chief Justice Kelligero in an awkward position. He had long supported Rule 20. Back in 1993, when a state agency asked him to change the rule, he refused. The ad was taken off of the ad. But now Kelligero was running for re-election under pressure from a well-financed challenger. The Chief Justice desperately needed to prove that he, too, was good for business. So Kelligero was facing his political future, and he can't sit on it anymore. He's got a rule. And rule he did, this time in favor of changing Rule 20. The court required that a group must prove that 75% of its members are indigent and provide evidence that they're living below the poverty line. The effect was to sharply restrict the ability of the Darlane Law Clinic to help citizens take on environmental cases like Chintek. The governor praised Kelligero's Supreme Court for changing Rule 20. Obviously it was a big blow, and it did make the Chintek victory appear to be a very purek one.

I mean, we won that battle, but in the larger sense, we lost... It appeared as though we had lost the war. We don't have access to the courts, because Rule 20 has made sure the modifications have made sure that we can't have access. And so the working poor in this community and in this state do not have equal access to the law and the protections of the law. We don't have no money to pay no lawyer. These people did a tremendous job for us, and I love them. I love them. Our governor, he's a coward, and he's a friend of those student lawyers, because they were some good lawyers, very good lawyers. They knew what they were doing, and that's why he fixes so that he can't work for us. But he's not only the bad one. The one says, back in him up, it's not worth a dime either. Within two weeks after Justice Caligaro was one of the chief architects of the Memphis to Rule 20. Within two weeks, the business interests in the state came out and endorsed Justice Caligaro. The week he cuts the deal. He's a Democrat.

29, I believe, members of the New Orleans business community, leading Republicans, endorse the Democrat. Could be a coincidence. The same week Justice Caligaro changed Rule 20. He received this letter of endorsement signed by Chamber of Commerce, German, Sam Leblanc, and other prominent business leaders. It was a letter to say these individuals who have signed this letter, support Justice Caligaro, anyone who runs against him, should know that these individuals are going to be in support of him. Now the money started flowing from business leaders and corporate defense lawyers, including the attorneys who represented Shintek. In the end, Caligaro raised over a million dollars and beat Kusumano by a comfortable margin. When Frontline asked him to talk about all this, the Chief Justice declined, saying Rule 20 is still the subject of possible litigation. I know that raising money is extremely distasteful to judges. I had a judge tell me, look, we do everything that we can to make sure the money doesn't influence it.

But you know, when the day comes and you have two people stand in front of you in court. One of those people gave you $5,000 and the other one didn't give you anything or worse gave some money to the person who ran against you, said, you know, that affection. That really does. Only Justice Caligaro knows if business pressure and campaign contributions influenced his decision on Rule 20. But the reputation of his court has been tarnished by the public perception of a quid pro quo. Louisiana Supreme Court commissioned a poll about confidence in the judiciary, and they asked people did politics play a role in the judiciary in Louisiana, and the response was not yes or no, the first response was laughter. Is that everybody knows that in Louisiana, certainly politics plays a role. But from the point of view of the people who had lawyers last year and can't get lawyers next year, this is not about electoral politics. This is about justice. This is about somebody slamming the courthouse door shut, locking it, and nailing it shut, and excluding a large group of people from ever getting the court. We know that our legislature and our governor, we're convinced that these people are bought and paid for by the corporations that buy their campaigns and pay for their campaigns.

But what we hoped was that at least we could get a fair hearing in the courts, that at least a judicial branch of government would be open to us, and we'd have equal access to the laws and to the protections and the law. Instead of that happening, they're giving all the protections to multinational corporations, and the citizens are being shut out. In fact, they have new plans coming to their area, which they want to oppose, which they have asked us to represent them on, and which we have had to tell them no, because they haven't been able to present the proof that they meet the rule. And again, I say they haven't been able to present the proof, not that they don't intrinsically meet the rule, but they can't get over those hurdles. So that's, in fact, happened. We have had to turn that group down, and that's hard, especially when you know that they have nowhere else to go. The law makes a promise, equal justice for all. If that promise is broken, if judges appear biased in favor of their campaign contributors, faith in the fundamental fairness of our courts is undermined.

Let me just give you some statistics from a poll conducted by the Texas State Supreme Court and the Texas Bar Association, which found that 83% of the public think judges are already unduly influenced by campaign contributions, 79% of the lawyers who appear before the judges think campaign contributions significantly influence courtroom decisions, and almost half of the justices on the court think the same thing. I mean, isn't the verdict in from the people that they cannot trust the judicial system there anymore? This is serious, because the law commands allegiance only if it commands respect. It commands respect only if the public thinks the judges are neutral. And when you have figures like that, the judicial system is in real trouble.

When it comes to the most partisan, expensive, knocked down, drag out brawls for control of a state supreme court, Texas is the heavyweight champion. Twenty years ago, it was widely known that Democrats and personal injury lawyers own the courts here, making Texas the lawsuit capital of the world. I'll tell you, there were a lot of people that if they woke up and were told that they had been sued in a Texas court for damages that would raise their heart beat up a little bit. In those days, there were no limits on Texas campaign contributions, and trial lawyers made enormous donations to justices on the bench, who were often ruled in their favor. Sitting judge, he had taken contributions from a single individual as high as $120,000, and it had several contributions in the $50,000 plus range from people that did a lot of business with the Texas Supreme Court. From about 1980 to 1988, it was very much of a Democratic court, and it was very much of a pro-plaintiff court.

And it was really the involvement of the medical community and the business community in 1988, where they began to pour money into judicial races of those candidates who were sympathetic to their point of view that began to change things. The Texas Medical Association spearheaded the campaign by this to take back the court. The videos by this provide the distributed to doctors to rally the truth. In the early 1970s, a handful of the richest, most powerful personal injury lawyers in Texas devised a scheme to seize control of the Texas Supreme Court. The grassroots campaign called Clean Slate 88. Obviously, politics in Texas is a full contact, no-pad sport to begin with in judicial politics at that time, even more so. And so we didn't want them to be shy, and we didn't want to be shy in how we conveyed it, so it was anything but a soft sell. One video highlighted the case of a Dr. Benjamin Bradley, who has been hit with a $20 million malpractice judgment.

Dr. Bradley has a Supreme Court he can appeal to if we prevail in November. Without that, he would have no chance in his career or be ruined as a practicing physician. Those tapes, frightened doctors, and made them want to get involved in judicial races, made them want to contribute money. And, of course, they were able to create a kind of grassroots campaign as well. We held what were briefings with the physicians around the state, more like rallies, and where we presented them with a package, basically that included letter that you could write to your colleagues, to your employees, an ad you can drop in the local newspaper that you would sign, they would talk about the importance of this, the letter you can write to your patients, which many did. For a card you can simply leave in your offices. We went to physician spouses. We have a very well organized physician spouse organization called the Alliance. In fact, many of these spouses, mostly female but not entirely, we would send to campaign schools and teach some grassroots techniques and phone banking.

We use them pretty much as the grassroots arm to make sure those cards were distributed. They would go to clinics and say, here's your slight cards. Doctors are one of the few groups that do see voters face to face when they're in a position of authority. And the doctors for a number of years have put out slate cards with candidates for court races and other offices they cared about, and they've handed them to their patients. In fact, one of our judges who was not supported by the doctors got such a card urging him to vote for his opponent when he took his daughter in or a medical emergency. Text pack hit the Supreme Court like a Texas twist. In one year alone, 1988, five of the nine justices were swept from office, replaced by text pack supported judges. I wouldn't be on the Texas Supreme Court if it wasn't for the help that the medical community gave me.

I would like to thank all of the participants and the clean slate coalition. The initial sweep surprised us and was exhilarating, of course, to pull it off with five out of six, you know, was exhilarating. And I think it redefined judicial politics, at least for this era. Who should be Chief Justice, prominent Democrats, endorse with public and Tom Phillips. Every major call of Texas attorney is made between 1988. Every major call of Texas attorney is formed. And only Phillips has said no to big money with strict limits on campaign contributions. When I ran for my first term, I put a voluntary limit on campaign contributions and tried very hard to get support from as broad a base of people as possible. But in more than a decade on the Supreme Court, Phillips to learn to play the money game. Tom Phillips has a serious interest in reform. And yet he is probably the best judicial fundraiser in the world. I think he's probably raised more money in his judicial career than any other judicial candidate.

So he sort of caught up in a bad situation where he feels this is improper and distasteful. But the fact of the matter, this is something that has to be done under the current system. Phillips was not alone in wanting reform. Just this Bob Gammage, a Democrat, found himself playing by rules he didn't like. As a candidate, I spent the disproportionate amount of my time on the telephone making calls going to fundraising events. That's the way the system is geared. You are a politician by definition. You are running at first in a partisan political primary. And then you're going to be competing with other people who are selected in partisan political primaries on the ballot in November. Meet Charlie Ben Howell, the Republican candidate for Texas Supreme Court. Like many politicians, he employed one of the most effective campaign techniques, negative ads. He was reprimanded by the State Judicial Conduct Commission.

The more money you have, the more you're permitted to run posties, the less money you have, the more you have to go to the negative. I had less money than any of them. My ads were almost totally negative. I felt I don't like to do that, but I had no choice. I had to penetrate the media markets. He also once wore his pajamas to court. We did not say anything was untrue. We did not embellish. We did not exaggerate. We simply pointed out that this gentleman had appeared to court in his pajamas. He had been jailed for contempt. And that he had appeared at a political outing with a signer as next saying Judge Coocon. Bob Gammage won, but his was a dwindling breed of Democrat rapidly disappearing from the courts. In 1995, he and Phillips formed a bipartisan alliance to reform campaign finance laws. They persuaded the legislature to pass a reform law limiting contributions to $5,000 per person. But campaign costs continued to skyrocket. Hospitals, insurance companies, banks, developers, together were spending millions of dollars on Texas Supreme Court races. Chief Justice Tom Phillips endorsed by virtually every major paper. In 1990, I had a very expensive election that I think was $2.6 million.

In 1996, I spent slightly more than my opponent. We had spent in the neighborhood of $2 million on the campaign. The Texas Supreme Court was a national disgrace. It's different since Tom Phillips took over. Justice Phillips still insisted on the need for reform. There were considerable efforts to find an opponent for me. And had I unilaterally disarmed, I probably would be on the street today practicing law. While Tom Phillips stayed in the money race, Bob Gammage called it quits in 1995 after one term. The system, he says, is just too corrupt. People don't go poor money into campaigns because they won't fare an impartial treatment. They pump money into campaigns because they want things to go their way. Why else would the contributors be there? They have interest to pursue. They have agendas to pursue. In some cases, they have ideologies to pursue. They're not just bland, benign philosophies. They won't results.

By 1998, the battle was over. All nine members of the Texas Supreme Court were Republicans, and according to critics, staunchly pro-business. Obviously, I would say that they're in control of the court today. There's no one on the court you could identify as being sympathetic with plaintiffs barb or plaintiffs generally. A veteran journalist, Walt Borges, prepared this study of the state supreme court's decisions over the past five years. The report found that the court decided 86% of the time in favor of physicians and hospitals, and over 70% of the time in favor of insurance companies and manufacturers. What we were trying to do was establish what the food chain was in the Texas Supreme Court, and doctors in hospitals were way up there, even more so than the insurance companies, which traditionally have had the highest win ratio. Manufacturing companies were very successful. At the bottom, the individual who's been injured either financially or physically.

The Consumer Rights Group, Texans for Public Justice, studies the impact of money on court decisions. Director Craig McDonald cite dozens of examples where campaign contributions create the appearance of impropriety. We would never allow umpires in a baseball game to be paid by the baseball players. Yet in Texas, we allow the Supreme Court justices to be paid, if you will, from the very parties who are appearing before them to be judged. It's the big law firms who appear there consistently, the corporations and the corporate packs with cases before the judges, and judges at the Supreme Court level are almost completely reliant on these sources for their seats on the bench. And there are many cases that raise your eyebrows. One of the terrible 10 court decisions cited by critics is the case of DK Agbor, an eight-year-old boy from Houston whose arm was permanently paralyzed doing a difficult birth. During delivery, his shoulders got stuck in the birth canal, and after he was born, we noticed that he didn't have use of his left arm.

He also had difficulties breathing, and so he was taken to intensive care for observation, and the doctor, she came back and told us that the baby is fine except that he is not moving his left arm. He had a rough time getting here. The nerves in DK's arm had been pulled from his spinal cord. Five months after the birth, doctors performed a nerve transplant. Unfortunately, the operation was not successful. I felt that it was my luck. I was just bad luck, and that I would just accept things like it is. A lot of people advised me that something was wrong, that this type of thing could not have happened, that I should pursue this murder. The Agbor sued their doctor for malpractice. She quickly settled out of court. But in the course of the lawsuit, the Agbor's discovered that St. Luke's hospital allowed the doctor to practice there, even though she had no insurance in the state of Texas, and had been the subject of numerous malpractice complaints. The Agbor's decided to sue the hospital for negligence.

We were angry at this hospital because they should have known that this lady did not have insurance to practice there, and they went ahead and let her to practice in their facility. I'm also considering the fact that she's had problems in the past. But a court rule that under the Texas Medical Practice Act, the Agbor's did not have the right to sue a hospital. An appeals court reversed that decision, saying the lower court had misinterpreted the law. Now the hospital appealed, and the case went all the way to the Texas Supreme Court. We just went to court to ask the court to let the people here at case. That was all we were asking for, and we fought for about four years just to let our voice be heard. Because we felt that this was an issue that involved the people, and so it would be a good idea for the people themselves to listen to hear us and then make the decision. But a jury would never hear the Agbor's case. In a split decision, five to three, the Texas Supreme Court ruled that the Agbor's could not sue the hospital, unless they proved that the hospital administrators had acted with malice or for thought.

It was one of the court's most controversial decisions. It got three dissents, including the Chief Justice, that said this is a ludicrous outcome. They basically took a law that was designed to protect patients and stood on its head and had it protect hospitals. Chief Justice Phillips insists that politics and campaign cash did not influence the court's decision. I believe the court aired in that case, but they took a very literal reading of a statute and applied it to the facts of this case. So while I disagreed with the result of the court reached in the Agbor case, I don't believe that it's a valid example of a court being influenced by campaign contributors or letting a philosophy run amuck. Craig McDonald believes money in politics did have a profound impact on the court.

Agbor is just one of many decisions where the court has rolled back the substance of law. They're trying to get the civil jury out of the mix. They don't want juries to get cases where they might find a hospital negligent and liable. And so the court has actually rewarded its highest donors. The court is doing exactly what these donors expected it to do when they gave them the $10 million to run their campaigns. 10 years ago, when the donors to Supreme Court candidates were mainly personal injury lawyers, the decision in the Agbor case would likely have gone the other way. Now the donors have changed and the court's philosophy has changed as well. That's the system that we're trying to change. In the meantime, we can't turn our backs on the judges that we believe should be the judges of choice and we have to support their elections. So we do it and our firm does it. The finance bar does it. The defense bar does it. The business community does it. Other interest groups do it. And so then you have the problem. It's a problem that troubles two U.S. Supreme Court justices.

We actually talked to a lobbyist in Texas who boasted that he had succeeded in reshaping the philosophy of the Texas Supreme Court through an all out political campaign and very large donations. I mean, what does that say? I think it shows if you have one group of people doing it, you'll get another group of people doing it. And if you have A contributing to affect a court one way, you'll have B trying the other way and you'll have C yet a third way. And pretty soon you'll have a clash of political interests. Now that's fine for a legislature. I mean, that's one kind of a problem. But if you have that in the court system, you will then destroy confidence that the judges are deciding things on the merits. And if people lose that confidence, an awful lot is lost. They've got to have fair decisions. In the political context, a fair means somebody that will vote for the union or for the business.

It can't mean that in the judicial context or we're in real trouble. What does it mean? To begin with, is it fair for the electorate to try to shape the philosophy at all without campaign contribution? Is this a proper function? I'm concerned about that. I do not think that we should select judges based on a particular philosophy as opposed to temperament, commitment to judicial neutrality and commitment to other more constant values as to which there is general consensus. In Texas, lawmakers are now considering how to reform the system. Some favor merit appointment of judges. Others want to keep elections, but impose strict limits on campaign contributions. The reformers are driven by a new urgency. The State Supreme Court's own poll found that half of the judges themselves believe money influences court decisions. An ordinary people are beginning to doubt the fairness of a system they were taught to believe in. Justice system in this country is the best you can get anywhere.

I still think so. But in this particular case, I think something was wrong. I guess they were looking out for the people who had big contributions. I mean, we come on citizens, cannot make that kind of heavy contributions to their campaign. And so we didn't matter. That's how I felt about this whole judgment. There's an old saying in politics, you dance with them what bring you. And it's perfectly normal, rational, and logical to be grateful to, deferential to, and respectful towards, even in perhaps disproportionate terms, those which bring you. Those who helped you get there and you hope will help you stay there. If you don't dance with them what bring you, you may not be there for the next dance. The consequences for democracy and the rule of law are enormous.

The historian Plutard said on the Roman Republic, quote, the abuse of buying and selling votes crept in and money begin to play an important part in determining elections. Later on this process of corruption spread to the law courts and then to the army. And finally, the Republic was subjected to the rule of emperors. There must be a recommitment, a rededication to the Constitution in every generation. And every generation faces a different challenge. We weren't talking about this 30 years ago because we didn't have money in elections. Money in elections presents us with a tremendous challenge, a tremendous problem. And we are remiss if we don't at once address it and correct it. You

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