Democracy at the Corner of First and Fourteenth: Judicial Campaign Spending and Equality

Abstract

This Article posits that the Supreme Court’s recent decision in Caperton v. A.T. Massey Coal Co., Inc., which recognized that substantial independent expenditures in support of a judicial candidate present threats to judicial impartiality similar to those posed by direct contributions, suggests that guaranteeing due process of law in state courts presents a compelling state interest justifying the regulation of spending in judicial elections.

The Supreme Court’s landmark decision in Buckley v. Valeo is understood to hold that only an “anti-corruption” rationale can justify campaign finance regulations, and to draw a rigid distinction between political campaign “expenditures” and “contributions,” holding that the anti-corruption interest justifies regulating only the latter. This article asserts that the expenditure/contribution distinction is particularly counterproductive in the judicial election context, precisely because due process of law is fundamental to the courts to a degree unmatched by the risk of corruption in the constituent branches.

Documenting the exponential increases in campaign cash and the newly central roles played by massive, and often highly-secretive, independent expenditure campaigns in high-profile judicial elections over the past decade, the article asserts that Caperton’s approach is not only a refreshing rejection of formalism in a compelling and new circumstance, but that, if embraced more widely, the norms that inform it can mitigate the emerging constitutional crisis in our state courts that Justice O’Connor, among others, so aptly describes.

Keywords: Caperton, campaign finance, contributions, expenditures, judicial elections, First Amendment, Due Process, recusal, judicial disqualification, Citizens United, judicial independence

JEL Classification: K40