In Citizens United v. FEC, five justices of the Supreme Court
found that the First Amendment protection of free speech prohibited Congress
from banning political advocacy by organizations, including pushing for the
election or defeat of candidates. Tightly blindfolded, Justice Anthony Kennedy
concluded, "Independent expenditures, including those made by
corporations, do not give rise to corruption or the appearance of
corruption." Justice Kennedy should observe what's happening to state
courts.
Citizens United was a campaign-finance accelerant, and not
just in federal races. It threatens the integrity of state courts, which hear
95% of the nation's cases.
At the state level, a majority of judges and justices stand
in some form of election. These elections are the minor leagues of U.S.
politics, even more vulnerable to the power of money than elections for
Congress and state legislatures. Donors who try to buy laws and lawmakers are
interested in buying the interpretation of the laws, as well.
A poll conducted by 20/20 Insight last year found that nine
of 10 American voters believe both direct contributions and independent
spending affect courtroom decisions. Earlier polls have consistently shown
citizens losing confidence in the courts. Other polls show sizable cohorts of
state judges and justices believing decisions are affected.
It's not just past contributors calling the tunes. It's
anticipation of getting contributions in the future, perhaps in a run for a
higher court, as well as the chilling fear of being attacked by well-financed
opponents. Though big majorities of judges say they want fixes for the
campaign-finance arms race, more of them are playing the game.
Influence mischief was under way long before Citizens
United, but a report from the Brennan Center for Justice, the National
Institute on Money in State Politics, and Justice at Stake shows the 2010
Citizens United ruling's rising impact on judicial races.
There was a 50% rise over the prior record, of 2003-2004, in
independent spending by interest groups in state Supreme Court races in
2011-2012. Spending that was not controlled by candidates or their campaign
committees was 27% of total campaign spending, not counting spending by the
political parties. More than a third of all funds spent on state supreme court
races came from seven special-interest groups and three state political
parties. Television ads backing candidates for high courts took a huge
leap—over a quarter funded by special interests, much of it attack ads
involving hot button issues and wild distortions of controversial rulings.
YOU MIGHT THINK THAT a judge should recuse himself if a
party to a case contributed to the judge or spent money on supportive election
materials, and 92% of the people responding to a Justice at Stake/Brennan
Center for Justice poll would agree with you. But the grounds for a judge's
recusal are judged by the judge.
The Supreme Court took a half-step toward a higher standard
in a case from the West Virginia Supreme Court. Anticipating an important case
against A.T. Massey Coal, Massey's CEO flooded money into ads attacking an
incumbent justice, who lost the election. The winning beneficiary of the Massey
money refused to recuse himself when the case reached the state Supreme Court.
A majority opinion in 2009 by Justice Kennedy said that while not every
litigant contribution requires recusal, "extreme facts" can create a
"probability of bias" violating due process. On rehearing, the West
Virginia court determined the case should have been filed in Virginia.
Throughout the land, significant campaign contributions
haven't generated many recusals. In some states, including Pennsylvania and
Wisconsin, half of the cases before the highest court involved litigants who
contributed to justices. John Grisham needn't fear running short of plots based
on reality.
Joanna Shepherd, an economist and professor at Emory
University School of Law, wrote a study for the American Constitution Society
examining the relationship between campaign contributions and state Supreme
Court decisions in 2010-12. After excluding cases in which two businesses
squared off against each other, Shepherd found strong patterns: The more
contributions justices garner from business interests, the more likely their
decisions will favor those interests.
Donor disclosure offers little solace. Dark money often travels
through layers of obscurity, including through super PACs and through 501(c)(4)
"social welfare" organizations that needn't disclose their donors.
Anyway, voters show limited interest or limited ability to sort out conflicts
of campaign interest. There are over 50 judges on a ballot in Harris County
(Houston), Texas; such elections tend to be straight partisan votes.
However one comes down on whether the First Amendment
sanctions unlimited spending on campaigns, judicial elections are different.
And if judicial elections aren't different, judges ought to be. States should
insist that judges recuse themselves in cases involving their contributors and
their campaign supporters. That would ease the arms race.
To thwart independent expenditures and dark money, the
states should move from elections toward merit-based appointments. Insulate the
process from politics, using a diverse, professional selection committee.
A Supreme Court justice discussed the loss of confidence in
the courts in a 1999 interview on Frontline: "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…if an attorney gives
money to a judge with the expectation that the judge will rule…in his client's
interest.…It's corrosive of judicial independence." Justice Anthony
Kennedy might review these words before writing his next campaign-finance
decision. They're his. Give judges gavels; take away their tin
cups.
SKIP KALTENHEUSER is a journalist based in Washington.
Barrons, June 28, 2014 12:20 a.m. ET
Comments
Campaign Finance Laws should restrict giving campaign
contributions for all officials to allow voters only and restrict them to
giving only to candidates who would appear on their ballot. Incumbent Judges should be required to put
their decisions on their website along with their resumes.
Norb Leahy, Dunwoody GA Tea Party Leader
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