Court Showdown: Chamber v. Plaintiffs

Photo by Adam Lynch

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The Mississippi Supreme Court races are a step apart from the other campaign fights this November. Unlike the contentious elections between Senate nominees Roger Wicker and Ronnie Musgrove or the campaigns of presidential nominees Barack Obama and John McCain, the Supreme Court races revolve around one single power struggle: the battle between plaintiffs and defendants.

The pro-business lobby wants to maintain high invulnerability to lawsuits, while attorneys want to be able to take a chunk out of them.

Campaign contributions show who is on which side, with groups like the U.S. Chamber of Commerce stepping in to finance elections of judges who regularly oppose plaintiff cases, and the other team receiving the brunt of donations from attorneys.

Influencing elections in Mississippi became a key function of the U.S. Chamber of Commerce at the turn of the century. The Chamber adopted a more aggressive stance regarding elections in 2000, after it received a huge contribution from the pharmaceutical industry the chamber financed advertisements that appeared to influence more than 22 congressional contests and at least eight state judicial contests.

The Chamber moved away from direct advertising the following year, instead choosing to fund sister groups, who in turn put money into pro-business candidates. In 2002, it gave $2.6 million to the American Taxpayers Alliance, as well as unspecified amounts to Mississippians for Economic Progress, a group that ran ads in 2002 that helped unseat Mississippi Supreme Court incumbent Chuck McRae.

Watchdog groups, like Public Citizen, suspect the group may also contribute to Mississippi races through the Law Enforcement Alliance of America.

The Height of Influence
Chamber front groups are still hard at work today. U.S. Chamber President Tom Donohue declared his plan for the group to spend millions battling candidates the chamber saw as anti-business.

"We plan to build a grassroots business organization so strong that when it bites you in the butt, you bleed," Donohue said.

Outside groups like Mississippians for Economic Progress, which also has connections to the Chamber, have paid for advertising regularly featuring Chief Justice Jim Smith.

"There's this big web of organizations all working for the same thing," said Sam Hall, spokesman for the campaign of Jim Kitchens, who is running against Smith. "You've got the American Partnership for Justice, which has given the Improve Mississippi PAC $125,000. If you go to the Web site for American Justice Partnership, they list as one of their partners the Mississippians for Economic Progress."

The problem with outside groups like MEP is that they easily skirt federal laws regarding campaign contributions through enormous loopholes. Mississippi has extremely lenient campaign finance laws regarding donation caps. While state law limits how much an individual can give a candidate, it does not limit how much a political action committee can give another PAC for state races.

PACs also skirt state laws requiring them to reveal their donors through the use of 527 groups—political organizations that are not regulated by the Federal Election Commission or by state election commissions. A 527 can raise unlimited sums of money from all over the nation. The organizers of the 527 can then create a PAC and donate any amount of the collected cash to it.

"When the resulting PAC files its campaign-finance report with the secretary of state, all you might see is $125,000 from The American Justice Partnership," Hall said. "They're basically funneling money up to Washington D.C. and then back down to Mississippi."

Seeing a bad trend in the making, former Attorney General Mike Moore and Secretary of State Eric Clark, both Democrats, ordered the Chamber to reveal their donors at the start of their influence in 2001. They also sought injunctions from Mississippi state courts to block the Chamber's advertising from running. The Chamber had doused Mississippi's judicial races with about $1 million in 2002, and disguised the source of this money under the Law Enforcement Alliance of America, an innocuous-sounding puppet organization similar to MEP. The courts in Mississippi (back before they were purchased with Chamber money) agreed with Moore and Clark.

But the Chamber already had the ear of Republican Supreme Court Justice Antonin Scalia, who oversaw the Fifth U.S. Circuit Court of Appeals covering Mississippi. Scalia tossed the state court injunctions without even hearing both sides of the argument, and reinstated the Chamber's attack ads and its right to use them with gusto.

Skirting the Rules
The Chamber—or MEP, depending on your perception—got busted again in 2007 for violating state lobbying laws, though the group got off with only paying a $500 fine. Attorney General Jim Hood, himself a frequent victim of attacks by the Chamber and its affiliates, investigated the group and found it had not been filing expenditure reports—all the while criticizing Hood for taking campaign contributions from attorneys.

It's not the first time the group has squirmed out from under scrutiny. Another Chamber-funded group, the Law Enforcement Alliance of America, fresh off an attack on incumbent Oliver Diaz, spoke glowingly on Smith's record, praising his hard work at putting criminals away.

The advertisement featured a woman in a courtroom talking to the camera, about the improved Mississippi courts. Smith released his own commercial this week, however, featuring the same woman—wearing the same clothes—in the same setting, but speaking directly on Smith's record.

State laws restrict Smith and the LEAA from coordinating their campaigns so intimately. They certainly can't share photos or footage. Wicker campaign spokesman Ryan Annison, for example, told the Jackson Free Press in October that he could not speak about a National Republican Senatorial Committee ad attempting to link their opponent with two attorneys convicted of corruption.

"Not only do we have nothing to do with them (the NRSC), but it's illegal for us to have anything to do with them. We learn about their ads the same way you do, by watching them on TV," Annison said.

The Chamber could also be squirming out of listing its entire bank account and who is filling it. Hall said the group supposedly has only taken in about $20,000, but has paid many times that amount in advertisement against judicial candidates.

Smith voiced a complaint during an October forum on the sheer price of running for the Central District this year, a race he described as costing "about $1 million." He said this price was nothing compared to other areas.

"My friend chief Justice (Cliff) Taylor in Michigan pays $15 million. Go to Texas, Alabama, Illinois, Ohio, and Pennsylvania—all over the country this has been happening. New York has the worst system by far."

Justice Diaz said he is spending about $300,000 on his own Gulf Coast campaign, and seemed grateful that, so far, only one Chamber affiliate, LEAA, was targeting his campaign on behalf of Chamber-backed opponent Randy "Bubba" Pierce. Diaz spent more than $1 million on the same race in 2000.

"We were expecting more of them to come after us, but I think the presidential race has siphoned off a lot of their money, as well as the unexpectedly close Senate race between Wicker and Musgrove. That's taken a large amount of their money. Not to mention the Central District race between Kitchens and Smith—they have to pump a lot of money into that," Diaz said.

Sought and Bought
The Chamber and its affiliates have chosen to aid the campaigns of state Supreme Court incumbents and candidates David Chandler, Pierce and Ann Lamar, as well as Smith.

Chandler is facing off against incumbent Justice Chuck Easley, who is vocal about why they want him gone.

"They're targeting me because they know I won't be bought by anybody, and they damn well hate it," Easley told the Jackson Free Press in August. "They know I won't come at their beck and call, and they want me off the court."

Supreme Court Candidate Gene Barton, who is running against incumbent Justice Lamar, joins Easley in his opinion that the pro-business lobby heavily influences the Supreme Court.

"The court is becoming unbalanced in such a way that the cases of average Mississippians who cannot give big contributions to judicial candidates are not receiving the same considerations of fairness and justice as the cases of companies and individuals and big donors," Barton said before a political forum in Jackson last month.

Ever since the year Scalia gave the Chamber the right to invade a state with gobs of national money, the trial lawyers have had to reach a little deeper into their pockets to keep judges from handing over the entire court to the business lobby. While campaign prices have consequently exploded, the court still sits tightly in the pocket of industry, according to attorneys who chose to remain anonymous.

Jackson attorney Alex Alston claimed that within the last four and a half years (the height of U.S. Chamber of Commerce influence in Mississippi court races) the Mississippi Supreme Court has reversed 88 percent of all jury verdicts in favor of plaintiffs. He also claims that plaintiffs' success rate in reversing a jury verdict for the defendants has been zero.

Two judges, Smith and Supreme Court judge Mike Randolph, denied the claim. Smith denied the accusation in July to the JFP and claimed to be holding proof of contrary argument upon his person, but refused to reveal any of the documents, despite prodding.

The nominees and incumbents supported by the U.S. Chamber revealed no motive for the organization's support during an August forum in Jackson between Lamar, Barton, Easley and Chandler. The candidates enjoying Chamber backing made no mention of the extra support, choosing to keep the conversation focused on their family life, values and career. Easley and Barton, however, pulled no punches in questioning the fairness of the court, making it a mainstay of their forum arguments.

Marty Wiseman, director of the Stennis Institute of Government, acknowledged that the war between lawyers and business interests are more open this election year than they have ever been. The attorney-funded candidates, in particular, appear highly aggressive.

"The attorneys' side may think they're stinging from the changes that they feel has happened to the court over the last few years and they're clearly looking for a fight this year," Wiseman said after the forum.

To Remove the Money
Some Chamber champions, meanwhile, would prefer to bar attorney input in the campaign entirely. Smith, a candidate facing the strength of incumbency, claimed attorney influence on the court was too high, despite numbers showing a clear majority of court decisions against trial attorneys' cases.

"We lawyers have done it to ourselves. The problem is there's too much money in the system," he said at an October forum with Supreme Court candidates from the state's Central District.

Smith referenced the average $1 million required to run a Mississippi campaign, and compared it to the expense reports of other states, arguing the expensive price tag was largely the fault of attorneys' contributions—while making no mention of Chamber influence.

"If I had my way, I would not let lawyers contribute one dime to judges," Smith said. "If it could stop them it would probably be unconstitutional, but I'd like to see the first lawyer who would challenge it. Ninety-nine percent would say 'That's a good idea, Jim.' We won't challenge it."

Yet another chamber affiliate, Stop Lawsuit Abuse in Mississippi, Inc., continued Smith's argument over the weekend about unseemly attorney influence, sending out campaign mailers stating "Birds of a featherŔ and sporting images of vultures. The mailer argues that half of Kitchens' donations have come from lawyers.

Kitchens said removing the lawyers would quickly be counted as a constitutional violation.

"You can't just exclude one class of people from the political process. You'd have to exclude either everybody or nobody. Anything less than that is a violation of the First Amendment," Kitchens said, but added he would personally like to see money removed from the picture.

Kitchens advocated a kind of blind campaign trust, where donors could give to campaigns without the recipients knowing the source of the cash, but acknowledged that any system could easily be shot through with holes.

Mississippi College School of Law Professor Matt Steffey told the Jackson Free Press that any blind trust could be subverted with a phone call from the donor to the recipient, and said even a blind trust would not silence the ubiquitous third-party ads.

"Even the worst third-party ads in town are protected by the First Amendment. There's nothing that can be done short of moving toward an appointed system," Steffey said.

Steffey acknowledged that an appointed system would have to have enough checks and balances to avoid tumbling into cronyism, but warned a system similar to the federal method, with approval required by one or both chambers of the legislative branch, could bring the process to a halt.

Kitchens hotly opposes an appointed system, despite the high costs of an elected system. He also believes the Mississippi public opposes it enough to use the possibility against Smith, who has praised the attributes of an appointee system before Senate committees and promised the voting public in earlier campaigns that he would push for an appointee system.

Smith said he has always stopped short of asking the Legislature to mandate an appointed system, however.
Grasping the Power

However much Smith and Kitchens bicker over the possibility of rejecting the court's electoral process, the sitting judges appear more than happy with democracy. Chamber surrogates went so far as to consider changing the court's seniority selection process to an elected version. Easley said in August that the dominant members on the court were looking to the future should Smith lose to Kitchens.

Members discussed changing state law designating the court's top positions to its longest reigning members, allowing members to elect their leaders.

The court energetically worked to stamp down news of the discussions, refusing JFP information requests concerning the matter. The court referred to the conversations as "internal deliberations" that were not "subject to public disclosure." Randolph and Easley admitted to the conversation, however. Randolph favored the idea, while Easley bitterly savaged the prospect.

Lamar played down the conversation last month, saying it amounted to a simple discussion with no real decision. Smith, meanwhile, was torn during the October forum between his unwillingness to admit the conversation even happened and conceding that the discussion not only happened but was routine.

"If I were to say that we were talking about something like that—which I'm not going to say because that should stay within the court. But if we were, it's not the first time it's happened. … Even if it was going on, there's nothing wrong with the court considering what the court could do if it chose to do."

In the same breath, Smith chastised whatever judge had leaked the information: "There's no way to control what someone will say or do. There's no way to control when someone will leak information from the court. If they will talk about something like that they'll talk about a case. Think on that a minute."

Miss. Code Ann. § 9-3-11 states that the chief justice will be the member of the court who has served for the longest time continuously; and, the two ... judges of the supreme court who have served continuously for the next longest time shall be presiding justices. Changing the law could result in some judges with high seniority, such as Justice James Graves, the only black member of the court, losing their chance at overseeing the docket and appointing some lower court judges.

Mississippi College School of Law Professor Matt Steffey told the Jackson Free Press that the noise in the Supreme Court races would only get louder as the two warring factions piled on the money.

"There's been a linear progression in terms of animosity and distortion in the judicial campaigns. They're getting more and more expensive and rancorous overall. If you saw the cost of a campaign in the 1990s and compared it to a 2008 election you have to ask what happened to the system," he said.


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