Three years ago, in Caperton v. Massey, the Court was confronted with a case from West Virginia in which a judge failed to recuse himself when the chairman and principal officer of a corporation involved in the lawsuit had spent substantial amounts of money through an independent entity to support that judge’s election. Justice Kennedy wrote that the probability of bias was sufficiently high as to violate due process. The appropriate test did not require any finding of actual influence, but only that an average justice would face a “possible temptation . . . not to hold the balance nice, clear, and true.” Caperton presented this issue in the context of a judicial election rather than of bribes or other improper influence. Still, the “debt of gratitude” for the donor’s “extraordinary efforts to get him elected” created the possibility for temptation. What constituted such “extraordinary efforts” as to generate this temptation? The Court found a need for an objective test that focused on the size of the individual contribution relative to total campaign contributions and total election expenditures. Kennedy believed that the vast sums of outside money required to trigger a due process violation would only apply in exceptional circumstances.

But that was in the old days. As with other elections in the United States, judicial elections continue to require more and more money. This is not a trend that is likely to stop of its own accord.

Notably, given his narrow interpretation of the anti-corruption element of campaign finance laws as applied to independent expenditures (from his opinion in Citizens United: “we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption”), Kennedy found in Caperton that due process could be violated even in the absence of finding quid pro quo. Read together, the two cases suggest that the threshold for finding the appearance of impropriety in judicial elections is lower than in other elections. Which makes sense, given that even though we allow for state-level judicial elections in most places, we still like to believe that legal decision-making is above, or distinct from, the grubby world of politicking.

The question of corruption remains a live one. This summer, the Supreme Court quickly dispensed with a campaign finance law from Montana in American Tradition Partnership, even though the state argued that there was, indeed, a history of corruption that gave the state a compelling interest in limiting independent campaign expenditures. (This history of corruption, as with West Virginia, related to the outsized economic power of mining in these states.) This decision did not speak explicitly about judicial elections, but a more recent decision of the 9th Circuit has invoked Citizens United to weigh in on a different speech issue concerning judicial elections, making the relationship between money, speech, law, and politics deliciously convoluted.

Jed Rakoff, sitting by designation in the 9th Circuit (the situation gets more interesting by the minute), authored the opinion in Sanders Co. Republican Committee, expressly following Citizens United in upholding the ability of political parties in Montana to endorse judicial candidates as an association’s exercise of free speech. While partisan judicial elections exist in many jurisdictions, a state with laws mandating non-partisan elections can now have a de facto partisan election if a political party decides to get involved. Is this a harbinger of changes to come for judicial elections, in the name of free speech? What will be the immediate effects? Who knows. On the one hand, this would seem to be the nail in the coffin for non-partisan judicial elections. But on the other hand, the money sloshing around election coffers has hardly given us a pure system for judicial elections; maybe party endorsements counterbalance the need for donations. Or maybe they compound them. Or both, depending on the particular circumstances.

But one thing remains clear: under Caperton and Citizens United, Justice Kennedy (and therefore the law of the United States) recognizes that judicial elections can raise problems that do not exist in ordinary elections. Legal contributions to judicial elections can trigger such perceptions of impropriety as to require recusal to preserve due process. What does the death of the non-partisan judicial election portend for the volume of money in these elections? Does a fixation on money capture the extent of influence-peddling? With the spigot of indirect contributions already wide open, will we see even more Capertons? Or will that case’s more capacious understanding of impropriety eventually fall victim to the Court’s more recent rulings that refuse to see influence-peddling in the form of indirect contributions?

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3 Comments

  1. Partisan races typically attract the lion’s share of money raised in judicial elections and the elections in 2009 and 2010 were no exception. Partisan judicial races attracted $33.5 million—nearly four times the $8.7 million raised in nonpartisan races.

  2. Andrew Mamo says:

    For anyone interested in the issue, there’s an upcoming Frontline episode that looks interesting: “Big Sky, Big Money”,
    http://tv.nytimes.com/2012/10/30/arts/television/big-sky-big-money-on-pbs-frontline.html

  3. Andrew Mamo says:

    And for a post-election follow-up, note Montana’s passage of Ballot Initiative 166: http://www.standwithmontanans.org/
    Montana’s congressional delegation is now charged with proposing a constitutional amendment to overturn Citizens United. Will this just fizzle out, or will it have some traction?

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