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Today, the Supreme Court heard argument in two cases that could affect the future of public financing plans in states that use them to combat the influence of campaign fundraising on judicial elections. According to SCOTUSBlog, the prospects for Arizona’s Citizens Clean Elections Act don’t look particularly good:

Justice Anthony M. Kennedy, who definitely seems to hold the deciding vote on the newest test of the Supreme Court’s skepticism about campaign finance laws, made repeated comments on Monday suggesting that he is very wary of Arizona’s attempt to offset the impact of wealthy candidates paying their own way. Among a variety that could be noted, no remark was more telling than what seemed almost to be a rhetorical question: “Do you think it would be a fair characterization of this law to say that its purpose and its effect are to produce less speech in political campaigns?”

A ruling against Arizona would invalidate the “trigger provision” portion of the act, which allows for an increase in funding for publicly financed candidates who are outspent by privately financed opponents. The argument is that candidates raising their own money are pressured to limit their spending, in order to avoid triggering an injection of public money into an opponent’s coffers. Justice Kennedy seems sympathetic to the claim that this pressure is so strong that it actually infringes on the First Amendment Free Speech rights of candidates raising private funds.

There has been plenty of speculation about how the case will fair before the Supreme Court. You can sample a selection below.

Justice at Stake Campaign: Supreme Court Case Threatens Public Finance Laws

NY Times: Arizona’s Boon to Free Speech

L.A. Times: Arizona election law heads to Supreme Court

Christian Science Monitor: Supreme Court to decide Arizona’s unique campaign financing law

NPR (Morning Edition): High Court Takes Another Stab At Campaign Finance

The Huffington Post: Will the Supreme Court Prevent Citizens United From Being Fixed?

Center for Responsive Politics: Arizona Public Financing Law Faces Major Supreme Court Test

Rick Hasen, renowned election law scholar and author of the Election Law Blog, wrote on the New York Times Room for Debate blog yesterday that the Citizens United decision is Bad News for Judicial Elections.

Today’s decision casts . . . aside . . . the fiction that candidates do not feel beholden to those who engage in large, independent spending favoring the candidates (or bashing their opponents).

This is a bad enough fiction to apply to elections for accountable elected officials; it is much worse to apply to judicial elections, where we count on the impartiality and fairness of the judges hearing our cases.

We completely agree. In fact, in PMC/PMCAction’s press release yesterday, we made a similar argument:

Justice Kennedy, writing for the 5-4 majority, discounted arguments that campaign contributions and expenditures create the appearance of influence and would “cause the electorate to lose faith in this democracy.” However, he failed to consider that the appearance of influence and access to judges already has been shown to cause voters to lose faith in our court system.

The simple solution is to change the way we select our appellate judges, taking them out of the campaign business altogether. Even without the inevitable flood of corporate spending on elections to come, far too much money is being spent on judicial candidates from lawyers, businesses, and political parties – the very groups that appear in court the most. Judges should be selected based on judicial ability, as in a Merit Selection system, not based on campaigning or fundraising ability.

For other takes on what this decision may mean for judicial elections, see the American Judicature Society’s response here and the Justice at Stake coalition’s here.

The United States Supreme Court today announced its decision in Caperton v. Massey, the West Virginia case asking whether the Due Process Clause requires judges to recuse in cases involving campaign contributors.

The Court, in a five-four decision authored by Justice Kennedy, ruled that in some cases, circumstances — including the amount of the contribution, the proportional size of the contribution related to other campaign fundraising and expenditure, the probable impact of the contribution on the election, and the timing of the litigation — may require recusal because “there is a serious risk of actual bias.”

The Court made clear that the inquiry is not whether there was actual bias, but whether all the circumstances create too great a risk of bias:

Although there is no allegation of a quid pro quo agreement, the fact remains that  Blankenship’s extraordinary contributions were made at a time when he had a vested stake in the outcome.  Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the consent of the other parties — a man chooses the judge in his own cause.  And applying this principle to the judicial election process, there was here a serious, objective risk of actual bias that required Justice Benjamin’s recusal.

PMC is heartened that the Court recognized that expensive judicial elections and the fundraising and contributions they require can create serious perception and confidence problems for the public.  We fear, however, that the dissenters’s predictions of future confusion and ongoing litigation will come to pass.  We believe the best solution is to get judges out of the fundraising business altogether and end the poisonous campaign contribution game by changing to Merit Selection.

Two of Pennsylvania’s major newspapers, inspired by the Caperton v. Massey argument this week, are calling for Merit Selection.  In an editorial, the Philadelphia Inquirer argues:

Spending on statewide judicial races underscores the messy business involving the river of money that flows through judicial elections. Checks often are written by lawyers who then appear before judges – an apparent conflict that the majority of voters have told pollsters they find troubling. . . .

The antidote to those elections, of course, is to switch to the merit-based appointment of appellate judges. . . .

The Pittsburgh Post-Gazette concurred on its editorial page.  Quoting Justice Kennedy’s observation that “Our whole system is designed to ensure confidence in our judgments,” the Post-Gazette argued, “Of course, that system would be much better if judges were selected in merit-based systems not susceptible to campaign contributors.”

As we’ve stated repeatedly, we think recusal rules in cases involving campaign contributors is a good place to start to address the problem of money in judicial elections. That’s why we joined an amicus brief in the Caperton case.  But the better course of action – - and a more permanent solution — is to get appellate court judges out of the fundraising business altogether.  Merit Selection accomplishes that, and we’re heartened to see these public calls for real reform.

The Associated Press offers a useful account of this morning’s oral argument in Caperton v. Massey. Although it’s always hard to tell how a case will be decided based on the oral argument, the A.P. offers a glimpse inside the courtroom:

The Supreme Court appears to be willing to say that elected judges must step aside from cases in which there would be at least an appearance of bias if they took part.

During lively arguments Tuesday in a closely watched case from West Virginia, the court’s four liberal justices and the conservative-leaning Anthony Kennedy all expressed support for a ruling that the Constitution’s guarantee of a fair trial could require judges not to participate in a case in which there was a likelihood of bias.

Honing in on the real problem created by a system in which judicial candidates raise funds from potential future litigants and lawyers, Justice Kennedy noted:  “Our whole system is designed to ensure confidence in judges.”  As PMC has argued — and as recent polls continue to confirm — the current system is undermining that confidence.

We will post links to the argument transcripts and additional news accounts as they become available. And we will keep you up to date on developments in this very important case.