Dean of the law school at the University of California, Irvine, Erwin Cherminsky, and associate professor of law at Hofstra, James J. Sample, published an Op Ed piece in the New York Times yesterday arguing that the Supreme Court should limit campaign contributions in judicial elections. Cherminsky and Sample assert that this issue pits two important constitutionally protected liberties against one another – the right of citizens to monetarily contribute to campaigns versus the right to adequate due process when in the courtroom. Since it is difficult if not impossible for judges to ignore the campaign contributions they have received (whether directly or indirectly) when making judicial decisions – given that they need continued campaign contributions from their biggest supporters in order to retain their elected judicial seat – this means that campaign contributions are having at least some effect on the due process right to a fair trial since cases are not decided purely on the basis of the merits of a case.
Thus, although the Supreme Court in 1976 ruled that “while the government can limit the amount that a person gives directly to a candidate, it cannot restrict how much a person spends on his or her own to get the candidate elected,” Cherminsky and Sample argue that there should be an exception in the case of judicial races since such contributions can lead to impartial judging. The balance of these two constitutional freedoms weighs, according to these legal scholars, in favor of protecting the right to a fair trial and against the protection of the right to contribute to elections in this limited set of circumstances.
Recently, DRI-“The Voice of the Defense Bar,” released a report, “Without Fear or Favor 2011” on this topic. The report warns of the threat to judicial independence and offers solutions to mitigate the impact of “Citizens United” and special interest funding. The report is available in its entirety at http://www.dri.org.