Interest Group Strategies in the State Judiciary:
Evidence from Alabama

Christopher Baxter
The University of Tennessee at Martin

     Two distinct lines of inquiry have in recent years studied two separate interest group strategies utilized to influence judicial decision-making and judicial selection in the states. On one hand, Epstein (1994) and Corbally, et al. (2004) have demonstrated that the use of amicus curiae, or “friend of the court” briefs by groups has increased significantly over the last thirty years in a select number of states. In another area of study, researchers such as Schotland (1985) and Bonneau (2004; 2006) have documented the dramatic growth of what Schotland calls “new-style judicial elections,” or competitive judicial elections marked by the use of modern media campaigns and by a dramatic increase in campaign spending, fueled in part by large and numerous contributions from interest groups.
     My goal here is to consolidate data on both these activities to identify any patterns or linkages between the two tactics, amicus filings and PAC contributions, which might suggest a larger strategy on the part of interest groups to influence judicial behavior. It has been demonstrated that both tactics are regularly used by a wide range of actors; what remains is determine how and when these actors choose to use these tactics. Given that both amicus filers and PACs almost by definition have a particular interest in the behavior of the courts, and assuming that there are a relatively limited number of interests in one state that have such interests, it is logical to assume that some of these actors will engage in both activities. Specifically, is there a significant number of groups that use both modes of participation? If so, do these active groups participate on a regular basis, or are they mobilized to do so only under specific circumstances?

Linkages between Amicus Curiae Filings and PAC Contributions
     As noted, the number of states in which these activities have increased is relatively small. One state that has emerged as an active arena for both amicus filings and PAC contributions is Alabama. For example, Alabama was one of only ten states to demonstrate a “high” level of amicus participation in Corbally’s study (2004), “high” being defined as over twenty cases decided by the state supreme court with at least one amicus brief during each year of the three-year period from 1998-2000. Similarly, over the past fifteen years races for the Alabama Supreme Court have set records in terms of both campaign fundraising and spending. It is for these reasons that I focus on data from that state in an effort to identify any coordination of these activities by interest groups.

Aggregate Data
     I begin by cross-referencing the entire list of amicus curiae filers across the period with the entire list of contributing PACs. I identified all amicus curiae filers in cases decided by the Alabama Supreme Court from the years 1990-2002 by conducting a search of Westlaw using the search terms "AMICUS" or "AMICI" and specifying the decision's release date of after January 1 but on or before December 31 of each year studied.¹ From election disclosures of Alabama Supreme Court candidates from the years 1992-2002, I was able to identify the 323 PACs that contributed to at least one Democratic or Republican candidate during that period. The Alabama Secretary of State by law also maintains records of descriptions of each PAC and the yearly contribution records of each PAC. By reviewing the descriptions and the listing of contributors for each PAC, for a majority of the PACs I was able to identify a single entity or group as the source of the PAC’s funds.
     As I was unable to identify seventy-one (almost 22 percent) of all of the PACs due to ambiguous descriptions and multiple contributors to the PAC, I begin with a set of 252 PACs that I can place into a general interest category (see column 1, table 1). Of these, I was able to identify 157 PACs as being directly associated with one particular group or entity (e.g., corporation), leaving a respectable 62 percent of all identifiable PACs with a link to a specific group or actor.² I was then able to cross-reference this list of specific PAC sponsors with the list of amicus filers. The aggregate results are listed in table 1. The fifty-nine PAC sponsors listed in aggregate form in table 1 represent what I will hereafter refer to as the “activists” during the period under study, in that they engaged in both modes of participation during this time.
(See Table 1)
      As they are among all PACs in this population, business interests are strongly represented among the activists; while the thirty-four business activists account for only 23 percent of all business-affiliated PACs, they represent slightly over half the number of activist interests listed here. Banking interests are also well represented; there were twenty-two banking-affiliated PACs, and seven participated as amici. There are threshold issues that would logically lead one to assume that these two interests would be expected to be more active in both types of participation. To participate as an amicus curiae, a group needs the opportunity (i.e., a case being considered by the Court that relates directly to your interests), and to participate as a contributor, one needs the resources. Banking and business interests are almost universally assumed to have more resources available to pursue their agendas than, say, civil liberties or education interests. Further, the large number of legal issues that will potentially impact the banking and business environments suggests that these interests will have a larger pool of pending cases in which they might want to participate as amici.
     While the data for the other types of interests in table 1 demonstrate that there are relatively few true activists outside the banking and business communities, the total number of activist organizations is relatively significant when considered in a certain context. To even the casual observer of Alabama politics, it will come as no surprise that the business, banking, agriculture, and education interests are represented among the activists; many citizens would likely be able to identify a prominent statewide organization that represents each of these interests. What is telling about the growth of interest group activism in the Alabama judiciary, however, is that there are not four or five complete activists, but fifty-nine. Within an eleven-year period, fifty-nine separate organizations chose to divert part of their political resources from traditional functions of lobbying and contributing to legislators and executives at the state and local level to engaging in activities targeted at the behavior of the Supreme Court. The traditional interests might still dominate, but there is now a relatively larger group of regular participants in the system.

The Behavior of the Activists
     Before focusing on the coordination of activities by the group of “activists,” it is worthwhile to briefly explore how much of the total interest group activity is accounted for by this group of activists; that is, just how active are the activists? In terms of amicus activity, most of these entities are, relatively speaking, more active in giving contributions than in filing briefs. Just over 66 percent of the group filed only one or two briefs during the period of study, though it should again be remembered that filing an amicus brief is dictated by opportunity. With this same limitation in mind, it is somewhat significant that the remaining 34 percent (20 of the 59 entities) filed three or more amicus briefs during this period.
     Overall, the “activist” entities are relatively more active at contributing than at filing briefs. Table 2 details the contributions of these fifty-nine entities in each of the Supreme Court elections from 1992-2002. The raw figure in each cell represents the total amount contributed only by the activists in that category in the given year; the figure in parentheses represents the percentage that the activists’ contributions comprised of all PAC contributions from that category.
(See Table 2)
     The data in table 2 defy easy explanation. It is reasonably safe to state that generally the activists included in table 2 were regularly responsible for a significant share of the PAC contributions from their category, with the exception of the lone lawsuit reform PAC. From election year to election year, however, there are significant fluctuations in these percentages. From this I cautiously draw two inferences. First, the data tend to support the conclusion that there are now a relatively large number of regular participants engaged in the practice of giving contributions to judicial candidates. For example, while the thirty-four business PACs represented in regularly accounted for a majority of the business contributions made after 1992, in years like 1998 and 2002 they accounted for just over half of all business contributions, obviously meaning that a significant level of contributions came from elsewhere. A related second inference is that the sporadic levels of participation, by both the activists and all other PACs in the listed categories, suggests that there are election-specific factors that affect the decisions to participate and to what degree to participate (i.e., how much to give). The number of contested seats in each year can partially account for the variances. Banking and business interests predictably gave smaller amounts in 1996 and 2002, when only one seat was being contested, and the lower levels of overall giving would contribute to distorting the percentages. The level of competitiveness of a race can encourage or even discourage giving. Still, there appears to be room for other election-specific factors to account for the varying levels of giving from one election to the next. It is now that I turn to the issue of whether an amicus filing might have any impact on decisions of whether to give and how much.
     Is it possible that an organization’s filing of an amicus brief during an election year might serve as an incentive or a cue for that organization’s PAC to contribute to candidates running in that year’s election? For the sake of convenience I will briefly posit two justifications for testing this hypothesis. First, the fact that an organization would be compelled to file an amicus brief in a particular case is prima facie evidence that the Supreme Court is dealing with issues that are relevant to the group’s agenda. An amicus curiae brief is simultaneously informative and coercive; its official purpose is to give the court added information on which to base its decision, but it is implicitly understood that the information is from one particular viewpoint with a particular set of ends in mind (see, e.g., Caldeira and Wright, 1988). Thus, the fact that an organization filed a brief in a case might have a mobilizing effect; the brief (or, more specifically, the case that prompted the brief) draws attention to the importance of the Court’s behavior to the pursuit of the organization’s agenda.
     Secondly, and more speculatively, giving a contribution might be perceived by the justices of the Court as reinforcing the group’s commitment to pursuing its agenda. Figuratively speaking, the filing of a brief might serve as the opening salvo in a campaign to see the group’s agenda enacted; active participation in the judicial selection might underscore the group’s long-term commitments to its goals. This is not to say that the PACs expect a quid pro quo from any of the justices in the sense of receiving a favorable ruling in exchange for a campaign contribution. Indeed, if an amicus is filed in a case in the year leading up to the November elections, the case itself will most likely be disposed of prior to the election or certainly the elevation of a newly-elected justice, and the justice would not be in a position to alter the disposition of the case. The literature has a long tradition of avoiding the issue of whether justices’ votes may be bought, and I do not intend to tread into that dangerous area of speculation at this point. As I envision it here, this motivation is comparable to the desire of PACs to have access to congressional candidates to whom they have contributed. While organizations cannot legally or ethically obtain an audience with a sitting justice, the combination of amicus and PAC participation might serve to convey to justices, in whatever indirect way, the seriousness of the group’s intentions and the relevance of their agenda to the legal and political environment.
     To test the hypothesis that PAC contributions might be used to reinforce amicus filings, I first chose to look at all of the activists’ history in participating in both activities. As seen in table 3, most of the organizations in my activist group started their judicial activism as amici rather than contributors. Given the relative newness of “new style” judicial elections, it should be expected that most of these activists would have already participated as amici prior to making contributions. The “lag time” listed in table 3 refers to the length of time between the organization’s first amicus filing and first PAC contribution during the period of study. The organizations which contributed first were actually quicker to engage as amici than the amici were to start giving contributions³.
(See Table 3)
     While the data thus far have supported the general observation that there are many entities that use a two-pronged approach to influencing the judiciary, the data in table 3 raise serious doubts as to whether a majority of these activists coordinate the use of these two tactics. My hypothesis that groups might use one tool to reinforce the efficacy of the other obviously requires that they be utilized almost simultaneously. The “lag times” of three and four years found in table 3, though averages, are rather substantial gaps and obviously do not suggest any kind of conscious coordination.
(See Table 4)
     The data in table 4 further undermine support for the presence of widespread coordination of giving and amicus activity. For each election year of the period under study, a majority of the entities who contribute to a candidate do not file an amicus brief either during the election year or the following year. While the pairing of these activities is not the norm, however, the data from 1994 do not rule out the possibility that a select group of participants do, in fact, coordinate their activities. For each election cycle except that of 1992, at least one fourth of all of the entities that contributed via their PAC did, in fact, file as amici either during the election year or the year after. Thus, it is not unreasonable to assume that a fourth of all contributors in this group have or expect to have litigation pending before the Alabama Supreme Court in which their group has an interest in the outcome.
     It is the last row of table 3 that provides the first evidence that amicus filings and PAC contributions might be strategically linked. These 12 percent of the activists filed their first amicus brief and gave their first contribution in the same year. The behavior of these organizations is at least consistent with my assertion that the decisions to participate in both activities are related. The decision to contribute to a candidate(s) is presumably based on the assumption that the organization has some interest in the court’s ideology and behavior; the logic of the timing strongly suggests that the presence of an active case worthy of filing an amicus brief increases the desirability and likelihood of giving a contribution, rather than the other way around.

Conclusion
     To summarize, the data here reaffirm that the giving of contributions to Supreme Court candidates and the filing of amicus curiae briefs have become common methods for organizations to attempt to influence the composition of the Court and to influence individual case outcomes, at least in a “new style” state such as Alabama. There were a significant number of organizations which utilized both tools as a means of expressing their preferences during the period of study. The traditional view of the courts as being removed from external political pressures must continue to be replaced with a greater acknowledgement that such political pressures are certainly being exerted in the direction of the judiciary. Based on their actions, a significant number of organizations feel it is rational and efficacious to expend their time and financial resources to utilize both of these modes of political participation in pursuit of their political goals.
     The idea that these two modes of participation are commonly used in some type of concerted strategy is not supported by the data, however. If any such strategies are being utilized, it is likely by a small group of active elites who are regularly engaged in these activities. In simple terms, I cannot point to any “smoking gun” that suggests a common perception that groups feel they can regularly boost the impact of their amicus brief by giving money to candidates for the Supreme Court. Acknowledging the possibility of some “prospective” oriented motive in PAC strategy – the belief that contributions can affect justices’ rulings – would be a significant departure from existing theory, and as such I am reluctant to declare such motives to be valid without substantial additional data. The idea that justices’ attitudes could be altered or even “softened” by contributions has long been the subject of cynical humor but has not been substantiated by reliable data. The data presented here, however, at the very least suggest the possibility of such motives and should justify future study. Clearly, the implications for existing theory if subsequent data should support this hypothesis would be significant.

References

Bonneau, Chris W. 2004. “Patterns of Campaign Spending and Electoral Competition in State Supreme Court Elections.” The
       Justice System Journal 25: 21-38.
__________. 2006. “Vacancies on the Bench: Open-Seat Elections for State Supreme Courts.” The Justice System Journal 27
       (2): 143-159.
Caldiera, Gregory A., and John R. Wright. 1988. “Interest Groups and Agenda-Setting in the Supreme Court of the United States.”
       82 American Political Science Review 1109.
Corbally, Sarah F., Donald C. Bross, and Victor E. Flango. 2004. “Filing of Amicus Curiae Briefs in State Courts of Last Resort:
       1960-2000.” 25 The Justice System Journal 39.
Eismeier, Theodore J., and Philip H. Pollock III. 1986. “Strategy and Choice in Congressional Elections: The Role of Political
       Action Committees.” American Journal of Political Science 30: 197-213.
Epstein, Lee. 1994. “Exploring the Participation of Organized Interests in State Court Litigation.” 47 Political Research Quarterly
       335.
Jacobson, Gary C., and Samuel Kernell. 1981. Strategy and Choice in Congressional Elections. New Haven, CT: Yale University
       Press.
Schotland, Roy A. 1985. “Elective Judges’ Campaign Financing: Are State Judges’ Robes the Emperor’s Clothes of American
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Tables

Table 1: PAC Sponsors Filing Amicus Curiae Briefs, by Category

Table 2:  Relative Contributions of “Activist” PAC Sponsors, 1992-2002

Table 3:  Activists’ Initial Contact with State Supreme Court

Percentages and lag times are rounded.

Table 4:  Number of Entities that Combine Giving and Amicus Curiae Activities

1. The use of Westlaw deviates from Epstein's 1994 methodology, which utilized the Lexis-Nexis database.  Comparable searches on each database yielded largely similar results, but over the thirteen-year time period studied, Westlaw detected ten relevant cases that Lexis-Nexis did not.
2. The PACs that I was able to categorize (i.e., business interest) but not associate with a specific group or entity are most often funded by contributions from a range of individual entities, groups, and even other PACs. Thus, it is possible, even likely, that certain individual contributors to these “collective” PACs were, in fact, amicus participants and participated in both modes of participation, albeit indirectly. While the decision to essentially exclude these actors admittedly decreases the number of “activists” from the analysis that follows, I prefer to focus on those actors who most directly made an effort to utilize both tactics.
3. I should at this point acknowledge a degree of uncertainty in identifying the timing of the filing of amicus briefs. The year that I associate with the date of the amicus brief is actually the year in which the publication of the opinion in that case occurred. There is no readily available source of information as to when amicus briefs are actually filed with the court. Briefs can conceivably be filed with the court any time from the original filing of the petition in the case to just before the court’s ruling. While it is possible that the filing of briefs in these cases happened in the calendar year prior to the publication of the court’s opinion, the most reasonable estimate is to use the year of publication.