It’s good to be an incumbent.
That’s one clear commonality among the four current races for the Supreme Court of Texas.
In each of the races, including that for chief justice, the present occupant of the bench has raised and spent far more money – sometimes many times more – than his or her opponent. (Three of the four Republican incumbents are men; all four of Democratic challengers are women.) And in almost every case, the incumbents entered the final weeks of the 2020 campaign with far larger war chests than their opponents.
Not surprisingly, three incumbents’ largest contributions almost invariably came from people or political action committees representing the biggest and most prominent law firms in Texas, as well as their wealthy clients, who are by far more likely to have business before the court than the average Texas voter.
“In Texas, as elsewhere, most interest group involvement in judicial races involves economic as opposed to ideological interests. … Civil defense lawyers and firms are aligned with business and professional interests,” wrote Texas legal scholars Anthony Champagne and Kyle Cheek in a 2002 article for Fordham Urban Law Journal. That hasn’t changed in the 18 years since.
According to financial disclosure reports filed with the Texas Ethics Commission over the last two statutorily mandated reporting periods, which together cover the period from Jan. 1 through Sept. 24:
– In the race for chief justice, incumbent Republican Nathan Hecht – the longest-serving member of the court in Texas history – raised $488,793. That’s more than three times as much as his challenger, Democrat Amy Clark Meachum, judge of the 201st District Court in Travis County. That advantage in fundraising enabled the Hecht campaign to spend $912,273, much of it on TV ads urging voters to support him “and his Republican colleagues on the Texas Supreme Court.” Meachum, by comparison, spent just $72,192 during the period.
– In the Place 6 race for associate justice, incumbent Republican Jane Bland raised $431,857, almost 17 times as much as her challenger, Democrat Kathy Cheng, who manages Cheng & Associates, her own Houston-based law firm. Bland outspent her challenger by an even greater margin: $596,449 to $9,230. And she entered the final weeks of the race with $132,174 in cash on hand, more than 11 times as much as Cheng.
– In the Place 7 race, incumbent Republican Jeffrey S. Boyd outraised his Democratic opponent, Judge Staci Williams of the 101st District Court in Dallas, $233,243 to $141,802, and outspent her $339,376 to $116,995.
– In the Place 8 race, incumbent Republican Brett Busby raised $522,027, almost 10 times as much as his challenger, Justice Gisela Triana of the Austin-based Third Court of Appeals, and has outspent her $696,719 to $29,727.
Such disparities, certainly, are neither new nor unique to Texas Supreme Court elections.
At offices of every level, from president to constable, incumbency as a rule conveys advantages that challengers struggle to match. Incumbents usually enjoy higher name recognition than their opponents. By virtue of their offices, they’re able to attract media attention in ways not available to those on the outside looking in. And savvy donors wishing to stay on the good side of officeholders are, on the whole, decidedly more likely to write checks to incumbents than to those hoping to become incumbents.
When it comes to financing the reelection campaigns of Texas Supreme Court justices, the leader of the PACs is Vinson & Elkins, historically the state’s most generous supporter of judicial candidates, especially GOP incumbents.
Ballotpedia, a nonprofit, nonpartisan website that bills itself as “the digital encyclopedia of American politics and elections,” collated contributions to the four incumbent Supreme Court justices on the ballot, dating from the beginning of 2019 through Sept. 24 of this year. (That’s a longer period, by one year, than that covered in the state’s last two reporting periods, from which The Texas Lawbook compiled the fundraising, spending and cash-on-hand totals listed above.)
According to Ballotpedia, V&E spread its largesse evenly among the four incumbents, giving $45,000 each to Hecht, Bland, Boyd and Busby, by far more than the justices received from any other single source. (There’s no easy and definitive way to assess from state campaign reports, moreover, how much in additional donations may have come from individuals associated with V&E – lawyers, for example, who have retired or otherwise moved on from the firm – their relatives, corporate interests represented by the firm, or executives of those business clients.)
David Wall, a partner in V&E’s Houston office and treasurer of the Vinson & Elkins PAC, said the firm’s financial involvement in Supreme Court elections is a matter of civic responsibility. He added that the firm scrupulously adheres to statutory limits on contributions.
“Under our Texas system, Texas Supreme Court Justices must run very expensive statewide campaigns,” Wall said in a statement. “We believe all lawyers should contribute so judges will not have to be at the mercy of special interests for support.”
He noted that the firm has “supported efforts for electoral reform of our judicial system for decades. … It should not be so expensive to become a judge.”
He added: “As long as we have our present system, however, we will continue to contribute as we believe lawyers supporting good judges makes the system healthier.”
Other law firm PACs that have donated to all four of the GOP incumbents, according to Ballotpedia, include:
– Kelly Hart & Hallman PAC, representing the Fort Worth-based law firm, which donated $72,776 total;
– Norton Rose Fulbright US LLP Texas Committee, representing the London-based, international firm that is the parent to the storied Fulbright & Jaworski LLP, which gave $70,000; and
– Bracewell PAC, representing Houston-based Bracewell, gave $45,000.
From the world of business, donors and their PACs that figure prominently in the justices’ campaign finance disclosure reports are a who’s who of influential trade associations and captains of commerce: Ray Hunt, Harlan Crow, Ross Perot Jr., Tom Luce, Erle Nye, Koch Industries, Valero Energy Corp., Chevron Corp., the Texas Association of Realtors, the Texas Association of Builders and the Texas Farm Bureau, among many others.
The amounts being poured into the Supreme Court races dwarf those in any other Texas judicial elections. For example, in three races for the Texas Court of Criminal Appeals – the state’s highest appellate court for criminal matters, and thus the equivalent to what the Supreme Court is on the civil side – no incumbent or challenger has raised contributions reaching six figures over the past 20 months.
Down the appellate ladder one rung are the state’s 14 courts of appeals. On average, the current Supreme Court candidates have each raised more than seven times as much as the court of appeals candidates in Dallas or Houston. Incumbent Supreme Court candidates outraised incumbent court of appeals candidates by more than 10 to 1.
At first glance, writing campaign checks to the Supreme Court’s Republican justices may seem like carrying coals to Newcastle. No Democrat has won a seat on the court since 1994; and in the quarter-century since then, GOP justices seeking reelection have generally won by comfortable margins.
That could change this time around, said Jeffrey M. Tillotson, the founder of Tillotson Law, a Dallas-based trial lawyers’ firm, and a longtime financial supporter of Democratic candidates and causes.
In his view, the closeness of the presidential race, the changing profile of the Texas electorate and a Democratic slate that reflects the state’s growing diversity give the challengers more than a puncher’s chance of taking one or more seats.
“Because of the changing demographics of the state and the overall lack of support for the current administration, there appears to be overwhelming support for Democratic challengers in these races,” Tillotson said.
“Democrats have never polled better statewide than now.”
Meachum, he noted, is the first woman ever to run for chief justice. Williams is the first African American female to seek a seat on the court, Cheng is the first Asian American, and Triana is Latina.
“The Democratic candidates,” he said, “are a ticket of firsts. No doubt about it.”
Publisher’s Note: This coverage of the 2020 judicial elections by The Texas Lawbook is being made available outside our paywall courtesy of Thompson Coburn and Carter Arnett.