Citizens United

Esquire's Charles P. Pierce comments that electing judges continues to be a bad idea--especially since the U.S. Supreme Court ruled in Citizens United that the government may not keep corporations or unions from spending money in support of candidates.

The Brennan Center for Justice has documented that $3.5 million in TV and radio ads have been bought so far this year regarding state supreme court elections in 10 states.

The problems include charter-school proponents giving to supreme-court candidates in Washington and Louisiana while lawsuits over the public funding of charter schools are pending. In Montana, one candidate has been criticized for "refusing" to give prison time to child pornographers and giving only a year sentence to man who repeatedly raped a 10-year-old; but those ads don't mention that those sentences involved plea bargains under the discretion of prosectuors.

The current chief justice of the Kansas Supreme Court, a former chief justice of the Texas Supreme Court, a former chief justice of the Florida Supreme Court and a former justice on the Montana Supreme Court have both come out against judicial elections in their states.

Kansas Chief Justice Lawton Nuss has come out against plans being considered by legislators to elect justices or have the governor appoint justices instead of keeping the state's 57-year-old merit selection system: "In Kansas, merit selection is a healthy competition that compares side by side the qualifications of numerous applicants. Their names and qualifications are made public, and the selection process itself is open for Kansans to see. Politics and its ever-increasing money play no role. But under the federal solution, only the name of the governor’s appointee is made known." He notes that voters get to directly play a role when voting on whether to retain justices.

In a piece published in the Montana Lawyer, former Montana Supreme Court Justice James C. Nelson says that he has changed his mind about electing judges. The $1.63 million raised in the last election cycle for the Supreme Court shows that going forward judicial elections will be "characterized by huge expenditures of dark money, attack ads, misleading mail stuffers, and the involvement of out of state money and organizations," Nelson writes. He notes that the U.S. Supreme Court's ruling lifting limitations on campaign expenditures by PACs, unions and other groups encourages unqualified attorneys to run for seats on the judiciary because they can play to "out-of-state dark money folks." In addition to changing Montana's constitution to select judges through a merit selection system, Nelson would require attorneys to have a decade of experience practicing in Montana courts.

In a piece published in the Dallas Morning News in January, Wallace B. Jefferson, Texas' former chief justice, and Barbara Pariente, former chief justice of the Florida Supreme Court, criticized the amount of special-interest funding being spent on judicial elections in the wake of the Citizens United ruling. They said judges should be selected by merit: "This method, used by 23 states to select their top judges, gives a nonpartisan commission the responsibility to evaluate the objective qualifications of judicial candidates and make recommendations to the governor for appointment. Some of these systems include retention elections, so that the voters can remove judges who have committed ethical improprieties."

Reuters' Lawrence Hurley reports that the U.S. Supreme Court appeared to be closely divided over a Florida judge's challenge to a law that bars judicial candidates from soliciting campaign contributions. Notably, the case was heard just about five years after the Supreme Court decided Citizens United v. Federal Election Commission.

Justice Anthony Kennedy, who authored the Citizens United opinion, is likely to be the swing vote, Hurley reports. The liberal justices appeared to favor keeping a law that tries to safeguard the judiciary from political influence, while the conservative justices appeared to favor the First Amendment interests tamped down by the law.

At least $730,000 has been spent on a Montana Supreme Court race, Hungry Horse News reports. More money has been spent on challenger Lawrence VanDyke than incumbent Justice Mike Wheat. Wheat has been labeled as more liberal than VanDyke. Trial lawyers have contributed to Wheat and conservative groups like the Republican State Leadership Committee and Americans for Prosperity-Montana have been contributing to VanDyke.

Wheat blames some of the ads on the U.S. Supreme Court's decision in Citizens United, which now allows corporations to directly spend money on political campaigns ads.

Mother Jones has a piece asking if Americans can get a fair day in court: "These days, as more candidates for the bench face rough contests—buffeted increasingly by outside money, thanks to the US Supreme Court's 2010 decision in Citizens United—state judges around the country often raise six- and seven-figure sums, mount statewide campaigns, and fend off attack ads from groups that don't disclose their donors. This trend has escalated over the last decade and a half as partisan groups realize that donating to judges can get them more influence, for less money, than bankrolling legislative campaigns."

Mother Jones notes that a Emory University study found that justices who received more money from business interests are more likely to vote in favor of businesses appearing before them and that an analysis by left-leaning think tank Center for American Progress suggested that justices would side with prosecutors when more money was spent on ads suggesting they were soft on crime.

The Republican State Leadership Committee, a national Republican group, is planning on spending $5 million on judicial races this year, reports Joe Palazzolo in the Wall Street Journal: "The GOP committee’s president, Matt Walter, said his organization’s main opponents are labor unions and groups of personal-injury lawyers, who have long contributed to state judicial races." The heavy spending is prompting judges to campaign more in order to hold onto their seats, Palazzolo further reports, which means that judges are forced into the "ethically tricky process of soliciting big money and stumping for votes from constitutents they might face in court."

The trend of outside money being given to judicial campaigns has accelerated since the U.S. Supreme Court struck down federal limits on corporate and union campaign spending, WSJ further reports.

The Second Circuit has rejected a $150,000 cap on individual donations to political action committees and independent-expenditure groups, Newsday reports. The ruling rises out of legsl action by supporters for NYC Republican Mayoral Candidate Joe Lhota.

The court granted injunctive relief on the grounds of the U.S. Supreme Court's Citizens United holding "that the government has no anti-corruption interest in limited independent expenditures," The New York Law Journal reported. Their story:  http://www.law.com/jsp/law/index.jsp#ixzz2ijtPbEjn

The San Francisco Chronicle reports on a case that could go even farther than Citizens United in limiting campaign-finance controls in favor of free speech. The case the U.S. Supreme Court will hear this term "involves a law that puts a ceiling of $123,200 on individuals who donate to multiple federal candidates, parties and political action committees during a two-year election cycle," the Chronicle reports. Advocates of overturning the limit argue it violates free-speech rights, but opponents argue such rules better ensure fair elections by controlling the amount of money the affluent can pump into campaigns.