Scholar Spotlights ‘Revelations’ Years After ‘Caperton’

Two recent revelations show that Supreme Court Justice Anthony Kennedy was right when he wrote in Caperton v. Massey about runaway spending in a state judicial election and getting access to, and ingratiation from, elected officials, election law scholar Rick Hasen writes at National Law Journal:

  • Then CEO Don Blankenship of Massey Energy, the big spender in the Caperton case, is on trial on charges in a coal mine explosion. At trial, a recording was played in which he rued that a picture of him and a state Supreme Court justice was “all over WSAZ,” a TV station. Anyway, Blankenship said, “I won…saved Massey $70 million.” Photos of Blankenship and that justice vacationing in France were published; Blankenship’s spending was in support of a candidate for the high court, who once elected, declined to recuse in civil litigation involving Massey and then cast a deciding vote in favor of striking down a $50 million award against the company.
  • The latter justice, Brent Benjamin, recently told a group at the University of Virginia, “I was tone deaf in not recusing myself in Caperton.”


Scrutiny for Clinton’s Views on a Supreme Court Pick

Hillary Rodham Clinton’s remarks about selecting a Supreme Court nominee are drawing criticism from those on both the left and right who suggest she may have crossed the line and imposed a litmus test.

That’s according to the San Francisco Chronicle. It quotes Nan Aron, head of the liberal Alliance for Justice, as saying litmus tests on a single issue “take us down a very dangerous path. They will only prompt another litmus test on an issue like Roe vs. Wade.” And Carrie Severino of the conservative Judicial Crisis Network said “this ‘litmus test’ is code for appointing political hacks.” (more…)

Opinion: Reforming Arkansas Judicial Selection is Ripe for Study

stock-footage-arkansas-flag-loopAfter Arkansas Gov. Asa Hutchinson recently said it is time to rethink the popular election of state appellate judges (see Gavel Grab), a Russellville Courier op-ed agreed, saying this would make the appropriate topic of study for a blue-ribbon panel.

Roy Ockert, emeritus editor of The Jonesboro Sun, wrote in the op-ed that the U.S. Supreme Court’s Citizens United ruling has changed the way political pressure and money can influence elected courts.

“In previous years [Arkansas] Supreme Court justices were fairly insulated from such political pressure. After all, they face election only once every eight years and, once elected, seldom face another opponent,” Ockert wrote. (more…)

New Mexico House Committee Responds to Citizens United

A New Mexico House bill that would “increase disclosure requirements on independent expenditure groups” passed its first committee vote on Tuesday, according to the Albuquerque Journal.

The measure, proposed in response to the Supreme Court’s 2010 Citizens United decision, was approved by the House Safety and Civil Affairs Committee 7-1. It now moves to the Judiciary Committee for more hearings.

A similar bill has been proposed in the New Mexico Senate, but no action has been taken yet.

‘Citizens United’ at 5: Protests, Stevens’s Criticism, JAS Cited

citizens-unitedA flurry of events around the fifth anniversary of Citizens United v. Federal Election Commission included protestors disrupting the Supreme Court’s session and retired Justice John Paul Stevens, at 94, publicly voicing his continuing dissent.

“There is a greater public feeling that money is more important than votes, which I think is quite wrong,” Justice Stevens said at a Florida event, according to The Gainesville Sun.  In Washington, about half a dozen demonstrators rose individually during a session of the high court to yell such statements as  “Money is not speech” and “One person, one vote,” the Washington Post reported.

Justice at Stake said on Wednesday that the 2010 ruling has cast a long shadow over elected state courts (see Gavel Grab). A report quoted JAS Executive Director Bert Brandenburg as saying earlier:

“Judicial elections have become a playground for big money and hardball politics … Citizens United poured gasoline on this fire, and in turn, unleashed record amounts of spending by outside groups … Our judges are trapped in a crucible. They are in a system they did not sign up for. They are raising millions from people who have business before the courts.”


JAS: Citizens United Casts a Long Shadow Over State Courts

JAS-LogoThe Supreme Court’s landmark campaign finance decision in Citizens United v. Federal Election Commission continues to cast a shadow over elected state courts, Justice at Stake said on Wednesday, the fifth anniversary of the ruling. Here is the statement of JAS Executive Director Bert Brandenburg:

“Five years ago, the Supreme Court in Citizens United permitted unlimited outside spending on elections. Many Americans understand the impact of Citizens United on executive and legislative branch politics, but its impact on state judiciaries is enormous and often overlooked.

“Judges in 39 states face elections, and 85 percent of all state judges are elected. With state courts a forum for ruling on many of the most contentious issues in our nation, whether health care law, abortion rights, marriage equality or environmental degradation, elected judges are being subjected to torrents of campaign spending by partisan interests who want to influence these decisions that have a major impact on our lives. (more…)

Pariente, Jefferson: ‘Alarmed’ by Citizens United Fallout

Jefferson_Justice_Wallace_2008_pariente0807The legacy of Citizens United for elected state courts is damaging, former Texas Chief Justice Wallace Jefferson and Florida Supreme Court Justice Barbara Pariente write in a Dallas Morning News op-ed.

“Although we were appointed to our states’ high courts by governors of opposing parties, we share a bipartisan concern: On the fifth anniversary of the U.S. Supreme Court’s Citizens United vs. Federal Election Commission decision, we are alarmed about the surge in interest group spending to influence state judicial elections. This has helped fuel a perception that justice is for sale, which undermines the public’s trust in impartial courts,” they assert.

Justice Jefferson was appointed initially by a Republican governor and Justice Pariente by a Democratic governor. Each has also run for the bench in elections. Their op-ed discusses specific examples of interest group spending to sway judicial elections and overall trends, and it concludes: (more…)

Report: Obama May Push to Curb ‘Secret Money’ in Politics

President Obama may announce in his State of the Union address on Tuesday a “major push to rein in the flood of secret money capturing our democracy,” the Daily Beast reported.

On the eve of the fifth anniversary of the Supreme Court’s landmark campaign finance ruling in Citizens United v. Federal Election Commission, Obama “may announce executive action … that would require businesses contracting with the government to disclose political contributions after contracts have been awarded,” the Daily Beast said. (more…)

Discussion: Money Obstructing Democracy in Wake of Citizens United

Bert Brandenburg

Every branch of government in every state has seen consequences in the five years since the Citizens United decision was handed down. 

Eight organizations presented research at today’s event – Five Years After Citizens United: What are the Costs for Democracy? Bert Brandenburg, Executive Director of Justice at Stake, explained that courts are being forced to bend to political pressure, turning them into “politicians in black robes.” He also noted that the upcoming Williams-Yulee v. The Florida Bar case will be an important hallmark, as the Supreme Court must decide if judges are permitted to directly solicit donations to finance their campaigns.


Study: Judicial Decision-Making Affected by 'Soft-on-Crime' Ads

From Ad in Illinois Court Campaign
From Ad in Past Illinois Court Campaign

A new study by Emory Law School researchers and the American Constitution Society finds evidence that TV ads attacking state supreme court candidates for being “soft on crime” make judges less likely to side with criminal defendants, the New York Times reported.

The Times article noted regarding any individual justice’s response, “Since state supreme courts are multi-judge panels, it’s not clear how often the changes in their voting behavior would alter the overall ruling in specific cases.” Here are the two principal findings from the study:

  • “The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants. As the number of airings increases, the marginal effect of an increase in TV ads grows. In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal. (more…)