Texas’ judicial-selection system creates serious conflicts of interest. State judges win office by waging partisan, political campaigns financed—in large part—by attorneys and litigants who have cases in state courts. Dabbing lipstick on this pig, Texas enacted the Judicial Campaign Fairness Act of 1995.¹ This law puts indulgent limits on how much money Texas Supreme Court campaigns can take from individuals ($5,000), law firms ($30,000) and PACs ($300,000).² The law limits the judicial campaign fundraising season to a period starting about 17 months before the general election and ending about four months afterwards. It also creates incentives for high-court candidates to voluntarily agree not to spend more than $2 million on their campaigns. Yet it imposes no restrictions on when the justices can spend campaign or officeholder funds.

Texas state officials enjoy broad discretion in how they spend political funds. While Texas campaign law makes a technical distinction between campaign and officeholder expenditures, no such difference exists in practical terms. Indeed, Justice Paul Green shuffled $164,311 between his campaign and officeholder account in this period, while Justice Jefferson moved $7,650 from his officeholder to his campaign account.³ The main legal restriction on political contributions is that they “may not be converted to the personal use” of a candidate or officeholder.  A “personal use” is one that “primarily furthers individual or family purposes not connected with” the official duties of a candidate or officeholder. Political contributions also cannot be used to buy or rent real property from a candidate or officeholder’s family members.

Then-Chief Justice Tom Phillips mentioned the leeway that justices’ have in spending their political funds during oral arguments in 1997. That day the court was considering if a trial judge should be removed from a case that was being litigated by a defense attorney who was donating $10,000 worth of legal counsel to defend that same judge in another matter.⁴ Chief Justice Phillips’ rambling yet candid comments during oral arguments foreshadowed the court’s later decision not to remove the judge. “To be blunt, in light of the way our judges get to be judges and stay there,” Phillips said, “isn’t it a little schizophrenic to say [that] somebody who represents you...disqualifies you from sitting in their cases...but somebody who gives you up to $5,000 or $30,000 from their firm—and some of that money you spend on a campaign to stay in office and some of it’s leftover and you can decorate your chambers with it—and that’s okay?”

Texas Supreme Court justices serve six-year, staggered terms. Since 2002, each of the court’s current nine members has faced a statewide election, with Chief Justice Wallace Jefferson winning two elections in this period.⁵ The 2002 election cycle formally began on January 1, 2001. That’s when this report begins tracking the political expenditures of Justices Nathan Hecht and Harriet O’Neill—the only current justices who were on the court on New Year’s Day 2001.

Current Justices Dale Wainwright and Paul Green first joined the court as a result of campaigns that they waged while serving as lower-court judges. They reported their first expenditures covered here 11 months before they were elected in November of 2002 and 2004, respectively (these were the first Texas Ethics Commission reports identifying them as high-court candidates).⁶ The five remaining justices (Scott Brister, David Medina, Wallace Jefferson, Phil Johnson and Don Willett) first joined the court when Governor Rick Perry appointed them to fill vacancies created by justices who quit before the end of their terms. This report tracks these justices’ expenditures from the time the governor announced their appointments. For all nine justices the last expenditures covered here occurred in June 2007. 

From January 2001 through June of 2007, the nine current justices reported making 9,699 expenditures of political funds. These expenditures added up to a total of almost $6.9 million. Predictably, this spending tended to spike in even-numbered election years and to subside during non-election years. Collectively the justices spent more than four times as much in election years as they did in non-election years.

 

Spending by Current Justice, Jan. 2001 to June 2007

 

Justice	Amount Spent In Period	No. of Expenditures	1st High-Court Appointment Or Election	Election(s) In Period	Share of Primary Vote	Share of General Vote
Don Willett	$1,752,056	673	Appoint: 8/05	2006	51%	51%
Wallace Jefferson	$1,310,740	1,928	Appoint: 3/01	2002; 2006	62%; 100%	57%; 76%
Dale Wainwright	$1,099,382	1,777	Elect: 11/02	2002	55%*	56%
Paul W. Green	$757,397	1,179	Elect: 11/04	2004	53%	100%
Nathan L. Hecht	$591,525	1,880	Elect: 11/88	2006	100%	76%
Scott A. Brister	$504,389	519	Appoint: 11/03	2004	100%	59%
David Medina	$459,023	762	Appoint: 11/04	2006	100%	75%
Harriet O'Neill	$223,194	675	Elect: 11/98	2004	100%	100%
Philip Johnson	$192,377	306	Appoint: 3/05	2006	100%	76%
TOTAL:	$6,890,083	9,699

          *Run-off percentage following an inconclusive primary.

 

Annual Spending by the Nine Justices, Jan. 2001 to June 2007      Justice 2001 2002 2003 2004 2005 2006 Jan-June 2007 Total  Brister $0 $0 $27,447 $415,851 $28,641 $21,435 $11,015 $504,389  Green $0 $0 $64,172 $621,374 $25,287 $28,736 $17,828 $757,397  Hecht $42,281 $40,864 $30,666 $33,001 $43,618 $72,771 $328,323 $591,525  Jefferson $146,972 $940,652 $25,751 $19,942 $83,936 $71,630 $21,857 $1,310,740  Johnson $0 $0 $0 $0 $86,574 $68,259 $37,544 $192,377  Medina $0 $0 $0 $11,906 $255,227 $141,328 $50,562 $459,023  O'Neill $13,936 $7,947 $74,306 $41,593 $18,146 $39,340 $27,925 $223,194  Wainwright $16,383 $927,258 $64,148 $26,344 $28,419 $22,109 $14,721 $1,099,382  Willett $0 $0 $0 $0 $79,666 $1,638,026 $34,364 $1,752,056  TOTAL: $221,574 $1,918,723 $288,493 $1,172,016 $651,517 $2,105,641 $544,139 $6,890,082

 

Not all elections are created equal. Since 2002, just three current justices have faced serious electoral competition. Justice Don Willett almost lost his appointed court seat in 2006. Fending off Democratic and Libertarian challengers, he won 51 percent of the general vote—and that was the easy part. Eight months earlier Willett narrowly beat former Justice Steven Smith in a two-way primary battle, taking just 50.5 percent of the vote. Smith had lost his seat to current Justice Paul Green in the 2004 Republican primary, with Green outspending the incumbent more than 4:1 to win 53 percent of the vote. In another squeaker, Dale Wainwright won a tough 2002 Republican primary that was decided in a runoff. He then won 56 percent of the general vote.

Facing considerably less competition, Justice Scott Brister had no 2004 primary opponent and outspent Democrat David Van Os more than 2:1 to win 59 percent of the vote that November. Justice Jefferson spent more than $900,000 during his 2002 election, or more than three times the combined spending of his primary- and general-election opponents (the closest of these challengers trailed Jefferson by 13 percentage points). In his 2006 election as chief, Jefferson spent little to brush off a Libertarian challenge. That same year, Justices Nathan Hecht, Phil Johnson and David Medina faced only token Libertarian opposition. Finally, Justice O’Neill won reelection in 2004 without a ghost of opposition.

These differing electoral landscapes shaped different spending patterns. Big-spender Willett spent almost $1.8 million during the period covered in this report, pouring 92 percent of this money into campaign-related expenditures. By contrast, several justices facing negligible competition spent more money in non-election years than they did when their name appeared on the ballot. While this is true of Justices O’Neill and Medina, it is especially true of Justice Hecht, whose spending skyrocketed in early 2007 (these Hecht expenditures are discussed in the Staff & Consultants section).

 

Annual Spending by Justices Elected in 2002

 

 

Justice	2001	2002	2003	2004	2005	2006	Jan-June 2007	Total
Jefferson	$146,972	$940,652	$25,751	$19,942	$83,936	$71,630	$21,857	$1,310,740
Wainwright	$16,383	$927,258	$64,148	$26,344	$28,419	$22,109	$14,721	$1,099,382
TOTAL:	$163,356	$1,867,911	$89,899	$46,287	$112,354	$93,739	$36,578	$2,410,123

 

Annual Spending by Justices Elected in 2004

 

 

Justice	2001	2002	2003	2004	2005	2006	Jan-June 2007	Total
Brister	$0	$0	$27,447	$415,851	$28,641	$21,435	$11,015	$504,389
Green	$0	$0	$64,172	$621,374	$25,287	$28,736	$17,828	$757,397
O'Neill	$13,936	$7,947	$74,306	$41,593	$18,146	$39,340	$27,925	$223,194
TOTAL:	$13,936	$7,947	$165,925	$1,078,818	$72,074	$89,511	$56,768	$1,484,979

 

 

Annual Spending by Justices Elected in 2006

 

 

Justice	2001	2002	2003	2004	2005	2006	Jan-June 2007	Total
Hecht	$42,281	$40,864	$30,666	$33,001	$43,618	$72,771	$328,323	$591,525
Johnson	$0	$0	$0	$0	$86,574	$68,259	$37,544	$192,377
Medina	$0	$0	$0	$11,906	$255,227	$141,328	$50,562	$459,023
Willett	$0	$0	$0	$0	$79,666	$1,638,026	$34,364	$1,752,056
TOTAL:	$42,281	$40,864	$30,666	$44,907	$465,084	$1,920,384	$450,794	$2,994,980

 

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¹ Texas Election Code, § 253.151 - § 253.176.
² These limits are even more indulgent than they first appear. Each candidate can hit them once going into the primary and hit them again going into the general election. In the event of a runoff, judicial candidates can hit the limit all over again.
³ Such internal transfers are excluded from this report to avoid counting the same political dollars twice. Green shifted a total of $159,311 from his campaign to his officeholder account in the second half of 2004. In October of 2003 he shifted $5,000 in the other direction. Jefferson shifted $7,650 from his officeholder account to his campaign account on May 2, 2001.
⁴ In re Union Pacific Resources Co., 969 S.W.2d 427 (Tex. 1998). Oral arguments occurred on December 4, 1997.
⁵ Wallace ran as an incumbent both times. This was because Governor Rick Perry appointed him to two different court seats that justices had vacated mid-term. Governor Perry first appointed Wallace to the court in March 2001; he then appointed him chief justice in September 2004. Justice Wallace faced voters in the next, regularly scheduled election after each appointment.
⁶ These reports—filed in January of their respective election years—covered expenditures made over the preceding six months.