Constitutionalizing Judicial Ethics: Judicial Elections after Republican Party of Minnesota v. White, Caperton, and Citizens United

71 Pages Posted: 22 Jun 2011

See all articles by Ronald D. Rotunda

Ronald D. Rotunda

Chapman University, The Dale E. Fowler School of Law

Date Written: June 21, 2011

Abstract

Recent times have witnessed strong lobbying efforts to move states away from electing judges to appointing them. Opponents of judicial elections repeatedly argue that the general public does not want judges who are bought by contributors. Of course, voters do not want those judges, yet the electorate repeatedly rejects efforts to move away from an elected judiciary.

When voters do choose judges, the conventional wisdom assures us that the results will be less partisan if the judges run in nonpartisan elections - where candidates run but do not disclose their political affiliation. However, empirical evidence does not support this frequent claim. Studies repeatedly show that judges elected in partisan elections are substantially more likely to be independent than judges selected in nonpartisan elections.

People who bemoan judicial elections often attack two U.S. Supreme Court decisions that appear to politicize the judiciary. One is Republican Party v. White (2002), which recognized the free speech rights of judicial candidates. They similarly criticize Citizens United v. Federal Election Commission (2010) as a pro-business decision that recognizes first amendment rights of corporations or individuals to spend money to engage in their political speech favoring their candidates. Yet, White simply evens the playing field by overturning restrictions that were really a form of incumbent-protection legislation. So too, the controversy surrounding Citizens United is misplaced. It does not favor business at the expense of unions. Instead it gives all entities, including unions and individuals, free speech rights that the government cannot restrict, which is why the ACLU supported the position of the petitioner and opposed the Federal Election Commission’s regulation. Still others view Caperton v. A.T. Massey Coal Company, Inc. (2009) as a case that will force judges to disqualify themselves if a party is related to an independent group that had supported the judicial candidate. It is too soon to judge the effect of Caperton, but there are plenty of indications in the five-person majority that the case has little growth.

It in inevitable that money will flow into political campaigns: indeed, economic studies wonder why the major players do not invest more in these campaigns, given that so much money rides on the outcome. As long as politicians and judges decide billion dollar issues, there will be multi-million dollar campaigns. Fortunately, the empirical evidence to support the assertion that those who pays the money gets the judge they wants is decidedly mixed.

Keywords: judicial elections, campaign finance, free speech, appointed judges, elected judges, nonpartisan election, free speech of unions

JEL Classification: A12, H39, K19, K41, D72, D79, K19, K41, K49

Suggested Citation

Rotunda, Ronald Daniel, Constitutionalizing Judicial Ethics: Judicial Elections after Republican Party of Minnesota v. White, Caperton, and Citizens United (June 21, 2011). Arkansas Law Review, Vol. 64, p. 1, 2011; Chapman University Law Research Paper No. 11-22. Available at SSRN: https://ssrn.com/abstract=1868963

Ronald Daniel Rotunda (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States

HOME PAGE: http://www1.chapman.edu/~rrotunda/

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