Caperton v. Massey

  • January 21, 2010
    Guest Post

    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.

    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.

  • November 17, 2009
    Guest Post

    By Bert Brandenburg, Executive Director, Justice at Stake
    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.

  • November 5, 2009
    Though a slim majority of the Wisconsin Supreme Court doesn't believe judicial campaign contributions should trigger judicial recusals, the state legislature is moving in a different direction. Today, the Wisconsin State Senate approved a bill to create a public financing system for state Supreme Court campaigns. The measure would allow taxpayers to opt for supporting the financing system by check-off on their tax returns. The Associated Press reports that eligible candidates would get up to $100,000 from the new fund for a primary and up to $300,000 for a general election. Earlier this week the Joint Finance Committee also approved the measure called the Impartial Justice Bill. Justice at Stake's GavelGrab blog reports that if the measure is signed into law, Wisconsin would join North Carolina and New Mexico in adopting public financing for high court elections. The blog also notes that recent polling shows strong support -- more than 60 percent -- for the proposal.

    As noted yesterday, the Wisconsin Supreme Court recently adopted a new judicial conduct rule that states campaign contributions alone are not enough to force a judge from hearing a case.

  • November 4, 2009
    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

  • June 8, 2009
    Guest Post

    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.
    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.