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Yesterday, the United States Supreme Court heard oral argument in Citizens United v. FEC. We reported earlier that we joined Justice At Stake and 18 partners in submitting an amici brief in the case, which focuses on restrictions on corporate contributions in elections.  Gavel Grab has extensive coverage of the argument here.

Justice At Stake Executive Director Bert Brandenburg offers an interesting commentary about the case on the blog of the American Constitution Society.  Brandenburg notes:

Just three months ago, the U.S. Supreme Court reached a historic conclusion in Caperton v. Massey. The majority held that the Constitution sets limits on how much special interests can tilt the scales of justice, by requiring judges to step aside in certain case involving their supporters.

Just three months later, Citizens United v. the Federal Election Commission, the campaign finance case argued today, has seemed to float in an alternate universe. . . .

A comparison of the cases is revealing. While Caperton focused on the courts, its gritty facts should strip away any glossy illusions about what will happen if corporate and union treasuries are turned into private campaign war chests.

Brandenburg goes on to compare the arguments made in both cases, noting that former Solicitor General Ted Olson who argued on behalf of Caperton earlier this year at that time opined that “‘The improper appearance created by money in judicial elections is one of the most important issues facing our judicial system today.’” Yesterday, Olson argued on behalf of Citizens United and opined that “with independent groups, ‘there is less of a threat of corruption because there is no quid pro quo.’”  Brandenburg notes that it is very difficult to square these positions and concludes by posing this chilling hypothetical:

[T]hree Americans in four believe campaign cash affects courtroom decisions. If the federal ban is struck down, similar state laws will be next.

If anyone wonders whether that will have a real-world effect, they should look at Caperton once more and ask this: What if Don Blankenship, the coal executive with litigation in West Virginia, hadn’t been forced to spend from his own pocket? What if he could have just cut a company check to underwrite an election? And what if an unwise ruling makes that the norm, not the exception?

As we wait for a decision in Citizens United, it might be a good time to think about how much worse the situation could become and to ask again why we continue to select judges by a process that requires them to raise campaign funds from individuals and entities likely to appear before them in the future.

The Star News of Wilmington, North Carolina reports that Superior Court (trial level court in North Carolina) Judge Jay Hockenbury will run for reelection next year but will not accept campaign contributions:

The judge, a 61-year-old Republican in a mostly Democratic district, said contributions from attorneys, developers or others with special interests could give the impression of influence over a judicial decision. Hockenbury said it’s never been an issue, nor does he want it to be.

Although the judge did raise money in his previous campaigns, he has decided not to this time around.  It’s interesting to note that in his initial election, Judge Hockenbury raised about $22,000.  So, we’re not talking about Caperton-size contributions here.  But still, the judge recognized that the role of money in judicial elections creates dangerous perceptions.

Judge Hockenbury has chosen one solution to the problem of money in judicial elections. But we think a broader, systemic solution that would get judges out of the fundraising business altogether would be even better.

Ohio Chief Justice Thomas Moyer spoke out strongly against the poisonous influence of money in judicial elections during a recent address to the Columbus Metropolitan Club.  Dispatch Politics, a division of the Columbus Dispatch, reports that Chief Justice Moyer urged: “‘We must reduce the role of fundraising in judicial campaigns . . . It’s corrosive.’”

He further noted that the money problem undermines confidence in the judiciary and courts across the board, noting that “polls have shown that most people — and even many judges — believe that rulings are influenced by campaign contributions.” This is not new information, but when the Chief Justice takes note of this data, people should listen carefully.

Chief Justice Moyer promoted a Merit Selection system in which the Governor selects a candidate from a field of three recommended by a nominating commission.  Judges selected this way would stand in uncontested retention elections.

We hope that people in Ohio — and Pennsylvania — will heed Chief Justice Moyer’s call for reform.

Attorney Peter Vaira’s op-ed in the Philadelphia Inquirer details recent troubles plaguing Pennsylvania’s court system and offers some thoughts on causation:

Is this Huey Long’s Louisiana? What is behind these events? Part of the answer is Pennsylvania’s county government system. Each county has its own courts, its own court rules, and often its own unwritten procedures. Nor does the state attorney general have any control over county prosecutors.

Another problem is that all judges run for election. This creates a system of subtle (and often not-so-subtle) IOUs, especially at the county-court level.

All of this can foster localized criminal justice and make the courts insiders’ forums.

Vaira’s tag that the judicial election system is “a system of ious” echoes increasing public concern about the influence campaign contributions have on judges.  Increasingly, the public has come to believe that we have a system in which justice may be “for sale” to campaign contributors.

This is simply an unacceptable situation.  To restore public confidence in our courts and judiciary, we must get judges out of the fundraising business.

Not long ago we reported that there was another recusal petition involving a West Virginia judge in a case involving Massey Coal Company, the same company involved in Caperton v. Massey (the recusal case that went all the way to the U.S. Supreme Court).  Judge Michael Thornsbury now has refused to recuse himself from the case.

According to the Charleston Gazette, “Thornsbury said allegations made against him by lawyers for local residents were “false and/or misleading” and that he should not have to step down from the lawsuit.”  The plaintiffs had alleged a friendship between the judge and Massey CEO George Blakenship, as well as the judge’s  appointment of a business partner as administrator over a medical monitoring program.

Also at issue was financial support for the judge’s campaign by one of Massey’s lawyers.  Regarding allegations about the defense attorney’s hosting of a fundraiser for the judge, the judge’s response to the recusal petition explained:

“The fact that both plaintiffs lawyers and defense lawyers sponsored the event shows the high esteem Judge Thornsbury is held by the entire bar,” wrote Jackson Kelly lawyer Daniel L. Stickler. “It was the shared belief of the sponsors of the event that Judge Thornsbury is a fair and impartial judge who never showed bias or prejudice towards any litigant appearing before him.”

It doesn’t matter that members of the plaintiffs and defense bar supported the judge’s campaign. The point is that someone felt uncomfortable having a judge presides over their case once they learned the other party was represented by one of the judge’s campaign supporters.  No one should ever have to worry that a judge’s decisions could be swayed by campaign contributions.

Judicial elections create an enviroment in which candidates need money to finance their campaigns.  The most likely sources of that money are lawyers, law firms and entities that frequently litigate in the state courts.  When judges later preside over cases involving lawyers or parties who financially supported their campaigns, it creates the perception that justice might be for sale. This undermines public trust and confidence in the courts and should not be permitted to continue. The solution is to get judges out of the fundraising business.

An AP report on WCCO in Wisconsin informs us that Chief Justice Shirley Abrahamson set a new fundraising record in her recent reelection campaign.  She raised $1.47 million. This was enough to break the $1.45 million record set just two years ago in another race for the state Supreme Court.

Where did Chief Justice Abrahamson’s donations come from? “Abrahamson loaned her campaign $50,000 and raised the rest from a range of supporters, including some lawyers who appear in her courtroom.”

This is just a taste of what’s to come in judicial elections — increased fundraising from the usual donors — lawyers, lawfirms and entities who frequently litigate in the state courts.

In a recent column, Jen Huntley of the Reno News and Review reacts to the Caperton decision:

When I read about the Supreme Court decision requiring judges facing civil cases involving significant donors to their own election to recuse themselves, my first response was—this is a no-brainer! How could anyone be impartial in a decision where one of the litigants had donated millions of dollars to get them elected? More to the cynical point—why would anyone contribute that kind of money to get a judge elected unless one thought they might want that judge’s good favor somewhere down the line?

Huntley goes on to explain that she learned from discussing the case that the decision may lead to new problems, like an increasing number of recusal motions. She raises an interesting question about judges who try to recuse but later are ordered by a higher court to hear the case:

In Las Vegas, a judge attempted to recuse himself from a case involving a litigant who had contributed a small sum to the judge’s election. The Nevada Supreme Court instructed him to hear the case anyway.

We have an easy solution for both problems: get judges out of the fundraising business and eliminate the question of recusal in cases involving campaign contributors.  Huntley also seems to recognize that the electoral system is the root of the problem:

Caperton raises the potential for corruption that flows from the system of electing, rather than appointing, judges. Americans adopted the electoral system because it seemed less corrupt. But with election costs skyrocketing, interested donors have more opportunity to try to create a favorable judicial climate for themselves.

Electing judges doesn’t make sense.  Judges should not have to wrestle with whether to recuse because a contributor is in court.  And court-users and the public should not have to worry about whether or not the judge might be biased because of campaign contributors. The solution is clear: Merit Selection gets judges out of the fundraising business.  To us, that’s a no-brainer.

As the Caperton decision continues to make waves around the country, an article in the Bucks County Courier Times highlights its impact in our region.  The context is the current judicial election contest in Bucks County.  (PMC and PMCAction do not endorse or support any judicial candidates, but we report about campaign activities or candidate statements that are relevant to our work).

Dave Zellis, one of four candidates in the race for the Bucks County Court of Common Pleas, is rejecting campaign contributions from lawyers.  His opponents have declined to match this move, and Zellis has faced criticism for having contributed to judicial campaigns himself in the past, but Zellis feels vindicated by the Caperton decision.  Responding to criticism from his opponents’ supporters that the Supreme Court wasn’t sufficiently precise in defining “substantial donations,” Zellis countered:

How do you define a substantial donation. . . . To the average resident trying to make a living in this economy, $100 is substantial. This perception that judges expect something in return from the lawyers standing before them in court-even if that’s not true-gives the justice system a bad name. It has to stop.

That perception of impropriety lies at the heart of the Caperton decision and underscores a fundamental problem of judicial elections-whether the donation is $3 million or $30, it creates the perception that a judge, who is supposed to be impartial, may feel beholden to a campaign donor. As PMC Executive Director Lynn Marks explained:

When you’re in court sitting with your attorney and looking across at your opponent or opponent’s attorney who made a contribution -it doesn’t matter how much they gave; it matters that they did.

It’s true the Caperton decision doesn’t specify the dollar amount at which an appearance of impropriety begins-it doesn’t need to. One dollar having passed from any party before the court to the judge behind the bench is one dollar too much. It’s time to get judges out of the fundraising business.

An editorial in the News & Record of Greensboro, North Carolina examines the Caperton decision and how it impacts a state like North Carolina that uses a system of public financing for its judicial elections:

Although most statewide judicial candidates participate in a public campaign financing system, that’s not a safeguard against big-money influence. Blankenship contributed only $1,000 directly to Benjamin’s campaign. He gave $3 million for so-called independent expenditures on Benjamin’s behalf. The same thing could happen in North Carolina.

The editorial contends that the problem stems from the system of electing judges.   John Martin, chief judge of the N.C. Court of Appeals and chairman of the Judicial Standards Commission, concurs.  According to Judge Martin, “‘The real problem is the election of judges.’”

Following Judge Martin’s lead, the editorial argues:

[Judge Martin is] right. Political donors influence governors, legislators and other elected officials. Judges are expected to act with greater impartiality, and they should be challenged when there are reasonable questions. But money impacts elections, and judges may not be blind to where it comes from.

As long as North Carolina holds judicial elections, it may create opportunities for situations like the West Virginia case.

We agree completely.  Elections will always cost money — even when a viable public financing system is in place.  The answer is to get judges out of the fundraising business.  Merit Selection is the way to accomplish this.

The calls for judicial selection reform in Pennsylvania in the wake of the Caperton decision continue.  This week, the York Daily Record and the Lebanon Daily News joined the call for Merit Selection:

[W]hy do we hold elections for [appellate court judges]. . . .

It’s a good question — one we have been asking in this space for years. We agree with reformers [who] have been suggesting we move to “merit selection” of judges.

The editorials argue that the Caperton decision should convince previously reluctant legislators to support Merit Selection:

[T]he U.S. Supreme Court recently provided the perfect “excuse”: The high court ruled in a West Virginia case that judges must recuse themselves from cases involving high-dollar donors who helped them win their seats.

If Pennsylvania used a merit selection process — as proposed in recently introduced legislation — we wouldn’t have to worry about running afoul of that ruling and judges wouldn’t have to try to figure out whether a $50 donation requires recusal.

Good point — Merit Selection takes judges out of the fundraising business and eliminates concerns that a judge may feel “indebted” to a party or lawyer who helped finance the judge’s campaign.  We hope Pennsylvanians will recognize that Merit Selection is the solution.