Speaking from the Bench: Judicial Campaigns, Judges’ Speech, and the First Amendment
28 Pages Posted: 16 Aug 2011
Date Written: 2010
Caperton v. A.T. Massey Coal, Inc. (129 S. Ct. 2252, 2009) raised a host of questions about when and if judges must recuse themselves for conflicts of interest based on campaign donations. In addition to the recusal issue, the case raises First Amendment questions. One possible strength of the Caperton holding is that it provides at least some remedy for egregious influence of campaign spending without real First Amendment problems. The First Amendment does influence the Supreme Court’s decisions regarding campaign expenditures and communications; in Citizens United v. Federal Election Commission (2010 U.S. LEXIS 766, Jan. 21, 2010), the Court struck down two precedents that limit spending on “electioneering communications” on First Amendment grounds. We offer a multi-element model that takes into account both of these decisions in an attempt to ensure that the public receives election information from both judges and campaign donors while still preserving the integrity of the judiciary through the option of recusal.
Keywords: campaign finance, judicial speech, recusal, First Amendment
Suggested Citation: Suggested Citation