Jun 19th, 2009
Posted by Seth DiStefano, ACLU of West Virginia at 11:28am	Free Speech

Buying Elections Is Not Free Speech, Part II

It is welcome news to see the recent decision by the U.S. Supreme Court mandating the recusal of the Chief Justice of the West Virginia State Supreme Court of Appeals from a case involving a company whose CEO invested millions in electing him to the bench. Last November I blogged about, among other issues, the circumstances that led our Nation's highest court to grant certiorari in the matter of Caperton v. A. T. Massey et al.

While the 5-4 decision doesn't address everything I have previously written about, it does answer a fundamental question with regard to our rights to due process and equal protection. Rather than rehash the arcane circumstances that put this important case before the Supreme Court (and as the basis for a John Grisham novel,) I will simply ask the following:

If you felt you had been wronged by a company and sought your day in court, could you expect to receive your constitutional right to a fair hearing in front of an impartial tribunal if you knew that one of the justices on that tribunal had received millions in support from the CEO of the company you were suing in order to help elect him/her to the bench?

My guess is that any rational human being would easily say "No Way." Thankfully, the court agreed, but by the slimmest of margins. In rejecting the argument that this decision will lead to an avalanche of lawsuits, Justice Kennedy wrote for the majority:

The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.

Many different opinions will be aired out over the next few months concerning where to go next with our state's method of judicial selection. Some advocate a system of optional public financing for judicial races. Others prefer appointment-style algorithms while still others advocate a nominee/legislative confirmation method. Without getting into a full blown discussion as to which is best (not at this time, anyway) it should be noted that West Virginia's current system of partisan election of judges, as flawed as it may be, was made stronger by the recent Supreme Court decision. At least now, when overwhelming financial support (direct or not) is given to a judicial candidate, the public at large can expect that prospective justice to step aside in cases involving those benefactors.

To be honest, you have to wonder if this decision will lessen the influence of money in judicial elections all on its own. If persons or interests know they cannot expect a return on their investment when dumping millions into a judicial campaign, they very well may stop doing it altogether. One can only hope.

Permalink |	Free Speech

Tags: U.S. Supreme Court

1. Jude Montarsi Says:
   Jun 20th, 2009 at 12:36pm

   Can anyone here tell me where I can get information about contributions to county, superior, and supreme court judges in Pennsylvania? If so, please email your suggestions at jmontarsi@yahoo.com Thank you.

2. Sean Parnell Says:
   Jun 22nd, 2009 at 10:02am

   I'm surprised to see this posting by an ACLU affiliate/chapter, as the ACLU has long understood the dangers of restricting the money spent by individuals in political campaigns.

   Your closing comment says it best, that this ruling will have a chilling effect on free speech: "If persons or interests know they cannot expect a return on their investment when dumping millions into a judicial campaign, they very well may stop doing it altogether. One can only hope."

   The Supreme Court's ruling will potentially chill independent political speech not just by discouraging speakers who wish to do what Don Blankenship did (spending a lot of his own money criticizing a candidate), but because there is so little to guide future speakers who's details differ slightly that they will be chilled as well.

   Imagine the state AFL-CIO running ads supporting a judicial candidate - would a winning candidate then have to recuse themselves from any case involving any of the 550 affilated members of the WV AFL-CIO? Maybe, maybe not - but if you're the WV AFL-CIO, are you willing to take the chance that a judge you think would be favorable to your interests is going to be disqualified if you speak out? Such uncertainty and potential negative consequences for speaking out only chills speech, something the First Amendment should not permit.

   Sean Parnell
   President
   Center for Competitive Politics
   http://www.campaignfreedom.org

3. Tiedeman Says:
   Jun 22nd, 2009 at 3:51pm

   Let's ask the question another way:

   If a judge doesn't make any comments that demonstrate bias; has no financial interest in the case; and has not violated any canon of judicial ethics, should the judge be required to recuse himself because of the actions of a third party, when the judge did not request those actions, has never met the person who took those actions, and had no ability to stop or prevent those actions from occurring, and if so, should this duty to recuse rise to the level of a constitutional obligation?

   I think you were smart not to rehash all the facts, because the more you look at the facts, the more problematic the Supreme Court majority opinion becomes.

4. george senda Says:
   Oct 6th, 2009 at 12:09am

   I have a question. It's off topic but I was wondering if the ACLU or anyone else would know.

   The FTC has announced they are going to regulate blogging. They are concerned that some bloggers are getting paid for endorsing products without disclosing such compensation.

   My question is :

   Is blogging a free speech issue and should bloggers be given the same rights as print and radio journalists, given that we comment on similar issues ?

   I've only seen one case on blogging where an agency in Rhode Island tried to stop a blog from posting in a child custody case. It was supposed to go to the Supreme Court, but I never heard the outcome.