A recent PBS "Bill Moyers Journal," episode focused on the fallout of the high court's recent ruling in Citizens United v. FEC, and especially how it could impact the election of judges. The Feb. 19 program revisits a 1999 "Frontline" program that investigated increasing concern about campaign contributions' impact on the judiciary and noted a recent comment from retired Justice Sandra Day O'Connor that the most disconcerting fallout of Citizens United may be its influence on judicial elections. The program also includes commentary from The New Yorker's Jeffrey Toobin, who said the decision, which held that corporations may spend freely on elections, could have a staggering impact on the courts in states where judges are elected.

Toobin maintains:

I think judicial elections are really the untold story of Citizens United, the untold implication. Because when the decision happened, a lot of people said, 'Okay. This means that Exxon will spend millions of dollars to defeat Barack Obama when he runs for re-election.' I don't think there's any chance of that at all. That's too high profile. There's too much money available from other sources in a presidential race. But judicial elections are really a national scandal that few people really know about. Because corporations in particular, and labor unions to a lesser extent, have such tremendous interest in who's on state supreme courts and even lower state courts that that's where they're going to put their money and their energy because they'll get better bang for their buck there.

Watch video of the program here or by clicking on the picture. 

On Feb. 24, ACS will host an event at the National Press Club further exploring the political and legal fallout from Citizens United. See here for information on the event. 

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By Bert Brandenburg, Executive Director of Justice at Stake, a nonpartisan, nonprofit campaign with more than 50 partners, working to keep America's courts fair, impartial and free from special-interest and partisan attacks.

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For those concerned about special-interest spending in elections, today's Citizens United ruling was an unmistakable setback. This ruling pours gasoline on an already raging bonfire that will affect all federal and state elections. And it will pose an especially grave threat to the integrity of elected state courts.

But today's Citizens United ruling does have a silver lining: it explicitly says that corporations that pay to play in elections can be forced to disclose their financial sources. Companies running so-called independent campaigns can literally spend infinite amounts. But they do not have a constitutional right to do so anonymously.

The ruling thus gives clear guidance to state and federal lawmakers that they can pass disclosure laws, to provide desperately needed sunlight in a new era of runaway election spending. Moreover, it is a hopeful sign that First Amendment attacks, which have been used as a battering ram against legitimate election laws, may have reached their upper limit with the Citizens United case.

In today's ruling, the U.S. Supreme Court said businesses can spend directly from their treasuries on federal elections-a ruling that could unleash a tsunami of campaign cash. And that's clearly just the beginning. As quickly as they can be cranked out, new lawsuits will demand equal rights for unions-and for spending on state and local elections, not just federal campaigns.

It's easy to imagine where this will lead, especially for those who focus on the specialized area of judicial elections.

Just last year, the Supreme Court faced all the potential worst-case scenarios when it issued a landmark ruling in Caperton v. Massey. In that case, a coal executive spent $3 million to elect a new justice to West Virginia's high court, as his company sought to overturn a $50 million jury award.

The U.S. Supreme Court forced the judge off the case, but it got a powerful sneak preview of what Citizens United could spawn. Remarkably, the money spent in the West Virginia election all came out of the executive's private finances. Now it's likely that he and other CEOs, as well as union chiefs, will ultimately turn business treasuries into personal election-campaign piggy banks.

Justice John Paul Stevens clearly had the Caperton case in mind when he wrote the following in his eloquent dissent:

The consequences of today's holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, see, e.g., O'Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p. A25; Brief for Justice at Stake et al. as Amici Curiae 2, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps "Caperton motions" will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems.

Given the historic purpose of campaign finance laws -- to prevent large concentrations of money from corrupting officials and undermining public trust in government -- that's hardly an inspiring prospect. And it might have been avoided had the court decided only the original question, of whether federal election law should apply to a video-on-demand documentary that criticized a presidential candidate.

So where are the silver linings in Citizens United v. Federal Election Commission? Where are election reformers now that the ruling has been handed down?

The disclosure ruling is significant, and it potentially affects all elections, federal and state. While it struck down Austin v. Michigan Chamber of Commerce's 1990 ban on corporate spending, the Supreme Court reaffirmed multiple Supreme Court rulings that campaign disclosure laws are consistent with the First Amendment. The Roberts Court, which is skeptical of campaign regulation, upheld rulings dating back to Buckley v. Valeo in 1976, which found that disclosure of election spending provides vital public information and helps combat corruption. Significantly, this ruling covers expenditures by independent campaigns whose goal is to influence election outcomes.

Lawmakers can and should now move without any fear of meaningful litigation to start a new era of sunlight on special-interest spending in all elections. And these laws should specifically bring a public accounting to the many groups that have used "independent" ad campaigns to skirt reporting rules.

One also can hope that this vote will leak some air out of a First Amendment overreach that has besieged courts in recent years. Despite statements to the contrary, federal courts have upheld most campaign finance laws against First Amendment challenges, choosing only to carve out specific exceptions, such as the "millionaire's amendment" in Davis v. FEC.

With the Supreme Court now rejecting the simplistic argument that all forms of campaign regulation violate free-speech, perhaps courts everywhere will pause and look more skeptically at the continuing assault on public financing and other laws.

This is especially true in the area of court elections. A second silver lining recent years is that the Supreme Court and lower tribunals recognize that courts have special constitutional obligations, which must be weighed against free-speech claims. In Caperton, for instance, the court said there is no First Amendment right to the judge of one's choice. A citizen can support any candidate for the bench. But if he goes to court, the Fourteenth Amendment may, for due process and fairness, require that another judge hear the case. Justice Kennedy, in the majority opinion, reaffirmed that in Citizens United.

Similarly, the conservative Fourth Circuit of Appeals unanimously upheld North Carolina's public financing law for appellate court races. In its 2008 ruling in Duke v. Leake, which the Supreme Court declined to hear, the Fourth Circuit wrote: "The concern for promoting and protecting the impartiality and independence of the judiciary ... dates back at least to our nation's founding," adding that the provisions "to protect this vital interest in an independent judiciary are within the limits placed on the state by the First Amendment."

Even if courts continue to chip away at specific campaign regulations, an argument can still be made that rulings such as Caperton and Duke v. Leake should provide a special protective shield around elections involving the courts.

No matter what, those who care about keeping courts impartial need to turn bad news into good news, by moving to enact real reforms-including disclosure, recusal, public financing and appointive systems - to make sure justice is not for sale.

[Image via HatCityBLOG.]

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By Bert Brandenburg, Executive Director, Justice at Stake

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This spring, in Caperton v. Massey, the Supreme Court said that due process required a West Virginia Supreme Court justice to step aside from a case involving a supporter who'd spent $3 million to help elect him. But the 5-4 majority left minimal guidance to the states, inviting them to fill in the blanks through state court rules.

First answers are coming from the Midwest, where divided courts have recently taken Caperton in different directions. Wisconsin's high court rejected proposals to require recusal when campaign spending reached a fixed "trigger" level. The proposal was sparked by record-breaking cash washing through the state's last three Supreme Court contests.

But the court's 4-3 majority took a far more radical step, approving requests from two of the state's most powerful players-the Wisconsin Realtors Association and Wisconsin Manufacturers & Commerce-that no contribution or independent expenditure, no matter how large, could ever be the sole basis for recusal. In other words, if Bernie Madoff had spent $100 million to elect a Wisconsin Supreme Court justice, a victim suing him for redress couldn't point to the support and ask the justice to abstain.

In Michigan, the state Supreme Court moved forward instead of backward. A 4-3 majority began by agreeing that a judge should be disqualified when "the judge's impartiality might objectively and reasonably be questioned" -- catching Michigan up with the vast majority of other states that have adopted this standard.

The Wolverine State's Supreme Court went further, adopting a first-in-the-nation provision that a litigant who fails to convince a justice to recuse may appeal to the entire high court (which would have to spell out its reasoning when it decided). "Times are changing and we're becoming increasingly aware of the impact a refusal to disqualify has on the public," said Chief Justice Marilyn Kelly.

Indeed, as spending on high court elections has more than doubled over the last decade, recusal has become a hot issue. Three in four Americans believe that campaign cash influences courtroom decisions. Caperton reaffirmed that this cash matters, and that every state must guarantee litigants a fair trial with due process, including in cases that involve major campaign spenders. And states are very much allowed to set rules that are tougher than the minimum required by constitutional due process requirements.

Since courts typically draft their own recusal standards, watchful eyes are on states like Nevada and Washington, which are now reviewing their rules. But judges don't always get the last word. In Wisconsin, just a week after the high court's retreat, legislators passed a system for public financing of judicial elections -- a reminder that impartial justice is everyone's business.

Only months after the U.S. Supreme Court ruled that judicial campaign contributions can force recusal in certain instances, the Wisconsin Suprmeme Court narrowly voted in favor of a judicial conduct rule that says endorsements and campaign contributions alone are not enough to force a judge off a case.

On a 4-3 vote, the Wisconsin Supreme Court adopted the rule, which was backed by business lobbying groups. Justice Patience Roggensack, writing for the majority, maintained that the rule will "send a message that making lawful contributions is not a dishonorable thing to do and it's not a dishonorable thing to receive."

But in dissent, Justice N. Patrick Crooks wrote, "I think what it's going to do is add to the perceptions (of bias) that are apparently out there rather than put them to rest." The Milwaukee Journal Sentinel reported that the majority in the case, In the matter of Amending the Rules of Judicial Conduct, rejected an alternate proposal pushed by the League of Women Voters of Wisconsin that would have triggered judicial recusals in certain instances.

In an article for the State Bar of Wisconsin's Web site, Alex De Grand wrote that the "First Amendment outweighed due process arguments," noting that Justice Roggensack wrote, "My major concern is the First Amendment."

In June, the U.S. Supreme Court ruled in Caperton v. Massey that the First Amendment, however, did not prevent it from fashioning a recusal rule. "We conclude," Justice Anthony Kennedy wrote for the 5-4 majority, "that there is a serious risk of actual bias - based on objective and reasonable perceptions - when a person with a personal stake in a particular case had a significant disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election."

In guest post for ACSblog, Professor Richard L. Hasen, of Loyola Law School, noted that while judicial elections, which 39 states have, are not going to disappear, Caperton would provide a "backstop for the most egregious cases of large campaign spending, when spending limits and judicial speech codes are otherwise off the table or severely limited."

For more analysis of judicial elections, see video of a panel discussion, "Judicial Elections: Financing, Recusal, and Judicial Independence," from the 2009 ACS National convention and an ACSblog interview with Justice at Stake's Bert Brandenburg on the impact of Caperton. 

Following his participation in a panel discussion on judicial elections at the 2009 ACS National Convention, Bert Brandenburg, executive director of the Justice at Stake Campaign, talked with ACSblog about the potential impact of the recent Supreme Court decision in Caperton v. A.T. Massey on state judicial elections. In Caperton, the high court ruled that a West Virginia Supreme Court justice should have disqualified himself from hearing a case involving a campaign contributor. Watch Brandenburg's interview below or download a podcast here.

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By Richard L. Hasen, the William H. Hannon Distinguished Professor of Law at Loyola Law School, Los Angeles, and author of the Election Law Blog, where this post was initially published.

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As judicial elections in recent years have become, in the words of Roy Schotland, "noisier, nastier, and costlier," litigants have consistently sought to limit some of the excesses sometimes seen in judicial elections, which 39 states use for at least some of their judges. Until today's opinion in Caperton v. Massey, the Supreme Court refused to impose limits as a matter of constitutional law. In Republican Party of Minnesota v. White (2002), the Supreme Court struck down on First Amendment grounds a state judicial code provision barring judicial candidates from "announcing" their views on disputed legal or political issues. Since White, as I've chronicled, lower federal courts have continued relying on the First Amendment to strike down a number of judicial codes seeking to keep judicial campaigns as something somewhat different from ordinary elections. (Justice O'Connor has since expressed regret about her crucial fifth vote in White, and has been working on the issue of judicial independence since retiring from the Court.) Since White and until today's decision in Caperton, the Supreme Court refused to consider other judicial election cases.

The details of Caperton are set out at the beginning of the opinion by Justice Kennedy. Briefly, a litigant with a $50 million case pending before West Virginia courts spent up to $3 million on independent activity (some directly, some through a 527 organization) supporting a candidate for the West Virginia State Supreme Court of Appeals. The candidate won, and he refused to recuse himself upon a motion brought by the other side. The justice, Justice Benjamin, cast the crucial vote in favor of the litigant. After the case was set for rehearing after recusal of two other Justices, he again declined to recuse and again cast the crucial vote. Today, in a 5-4 decision, the U.S. Supreme Court held that Justice Benjamin's failure to recuse violated the Due Process Clause of the 14th Amendment. Here are some of my thoughts on the case.

1. Judicially manageable standards. My first thought in reading this case with its 5-4 lineup was one of relief. With Justice Kennedy, the swing vote in play, I was worried we'd have another 4-1-4 split as we saw in the partisan gerrymandering case of Vieth v. Jubelirer in which Justice Kennedy, writing only for himself, bemoaned the lack of judicially manageable standards leaving the standard murkier than ever. But fortunately for the sake of judicial administrability, we have a 5 justice majority opinion (with no concurrences), that sets forth a relatively clear standard. Though the general language is one of "probability of bias," the main test is the one that appears on page 14 (page 18 of the pdf):

We conclude that there is a serious risk of actual bias--based on objective and reasonable perceptions--when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign,the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

The Court repeatedly notes that the facts have to be extreme, and in most cases campaign spending will not be enough to trigger recusal.

2. The dissent. Though this is a relatively clear test, and one that will rein in the most egregious cases of potential bias, Chief Justice Roberts is right that the standard leaves open many questions about its implementation. In his dissenting opinion for himself, and Justices Alito, Scalia, and Thomas, the Chief lists 40 different questions that he says need to be answered in subsequent cases about how this standard is to be implemented. To be fair to the majority, I think the list overstates the nature of the uncertainty. Some of the questions, such as the question of causation, are answered by the majority (see slip. op. at 15.) But other questions raised are legitimate ones. The key difference between the majority and the dissent appears to be this: Is it worth the risk of many more recusal motions and additional litigation to flesh out the details of the new recusal standard? To the majority, the effort is worthwhile to promote the fundamental fairness of the judicial process in cases brought before elected judges. For the dissent, the effort is going to undermine faith in the judiciary, by increasing the amount of accusations of unfairness against judges.

3. Caperton and Campaign Finance. One of the most interesting subtexts of the decisions in this case is the role of campaign finance. Justice Kennedy, of course, has been one of the Justices most opposed to the constitutionality of much campaign finance regulation on First Amendment grounds. Here, however, Justice Kennedy acknowledges the important role that campaign spending plays in potentially influencing outcomes: if such outcomes can influence judges---creating the possibility of subconscious bias on the part of judges who benefit from independent expenditure campaigns---isn't the same true of candidate for other office, and doesn't that present a reason why even independent expenditures can be regulated? I would expect some of Justice Kennedy's words to be thrown back at him in a future case involving campaign finance laws outside the judicial elections context. Moreover, given the key distinction in campaign finance law between contributions and expenditures, I thought it was very curious that Justice Kennedy frames the issue at the beginning of the case as follows: "The basis for the motion was that the justice had received campaign contributions in an extraordinary amount from, and through the efforts of, the board chairman and principal officer of the corporation found liable for the damages." (My emphasis.) Only $1,000 of the $3 million spent supporting Justice Benjamin came in the form of a contribution to his campaign, thanks to a campaign contribution cap. The remainder were for independent expenditures and contributes not received by the Justice but by a 527. Perhaps this inadvertent equating of contributions and expenditures will disappear when this opinion is finalized for the U.S. Reports.

The dissenters' views are more in line with their view on campaign finance. Because they don't see anything objectionable about large (even one-sided) campaign spending supporting or opposing candidates, they see less of a constitutional problem with judges benefitting from such spending. It is just in the nature of campaigning that this kind of thing can happen. And, as the Chief points out, as far back as Buckley the Supreme Court recognized that independent spending can sometimes work against the interest of the candidate supported. (My sense in the real world is that this happens quite rarely, and that usually independent spending tracks the movements of the candidate campaigns, and seeks to independently emulate those movements.)

4. Overall significance. This is not just a victory for liberals who generally support more regulation of campaigns (though it certainly is that in terms of getting Justice Kennedy's vote). Recall that Ted Olson was the one who argued for recusal in this case before the Supreme Court. Some in the business community too will be happy with this ruling. Judicial elections are not going away---we haven't seen a state abolish them since White. Caperton provides a backstop for the most egregious cases of large campaign spending, when spending limits and judicial speech codes are otherwise off the table or severely limited. Given Chief Justice Roberts' 40 questions, it will be interesting to track how much uncertainty actually comes out of this opinion. My sense is that things won't be as dire as the picture painted by the Chief Justice.

5. Justice Scalia's brief opinion. Justice Scalia's two page opinion quotes from the Babylonian Talmud: "A Talmudic maxim instructs with respect to the Scripture: 'Turn it over, and turn it over, for all is therein'.' The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935)." As I remarked when Justice Scalia made reference to the sanhedrin during oral argument in NAMUDNO, Justice Scalia does not mind citing foreign law, so long as it is a few thousand years old.