Soon after Justice O’Connor retired, in 2006, the Supreme Court embarked on a run of campaign finance decisions amplifying the role of money in politics. Those rulings are also helping transform state judiciaries.
“At a time when concerns about the conduct of judicial elections have reached a fever pitch, the court today unleashes the floodgates of corporate and union general treasury spending in these races,” Justice John Paul Stevens wrote in his dissent in the 2010 Citizens United decision, which concerned spending in a presidential primary.
The last three election cycles included $152 million in spending in judicial races, according to Justice at Stake, a research and advocacy group that says it seeks to protect judicial independence. “Judicial campaign cash is burning a hole in the Constitution,” said Bert Brandenburg, the group’s executive director. “You cannot pour millions of dollars into our courtrooms without having an effect.”Liptak notes that the federal courts of appeals are split over whether states can prohibit campaign solicitations by judges. Liptak highlights one case, Williams-Yulee v. The Florida Bar, that may end up making it to the Supreme Court. The issue in that case is "Whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment."
Liptak points out that recent Supreme Court cases have taken a permissive approach to campaign finance regulations in cases like Citizens United v. FEC. He notes, however, that in Caperton v. A.T. Massey Coal Co., the Court seemed to take a different approach to cases involving judicial elections.
In Caperton, the United States Supreme Court overturned a West Virginia Supreme Court of Appeals decision on the ground that one of the West Virginia Supreme Court of Appeals justices, Brent Benjamin, had accepted substantial campaign donations from Don Blankenship, the chair of A.T. Massey Coal Co., and the defendant in the case. Despite having previously received these donations from one of the parties in a case before him, Justice Benjamin refused to recuse himself and ended up being the vote that caused the West Virginia Supreme Court of Appeals to rule in favor of A.T. Massey. The United States Supreme Court held that Justice Benjamin's refusal to recuse himself violated the plaintiff's due process rights.
Liptak's article concludes that the Court would likely strike down restrictions on judicial campaign funding despite its decision in Caperton. I am inclined to agree. While the Court's finding in Caperton recognized that some instances of campaign finance may affect a judge's impartiality and violate due process, Caperton involved a clear case where one judge had previously received a notably high amount of donations from one of the parties in a case before the judge. The Supreme Court would likely distinguish the clear abuse that occurred in the Caperton case from broader questions of campaign finance regulations which do not inherently involve such blatant quid pro quo.
Moreover, the Supreme Court can appeal to its ruling in Caperton to argue that campaign finance restrictions will not have a meaningful impact on preventing judicial corruption. Having ruled that clear instances of quid pro quo can already be remedied through due process challenges, the Court may argue that any additional regulation would be an excessive restriction on the First Amendment right to contribute to political campaigns.
If the Supreme Court does indeed intend to take this approach to judicial campaigns, it is likely that the Court will end up hearing the Williams-Yulee case in order to settle the circuit split on the issue. Moreover, the Ninth Circuit's recent decision to grant en banc review to its earlier decision striking down Arizona's restrictions on judicial campaign financing may increase the probability that the Court will take up Williams-Yulee.