By Mike Dorf
Under a proposed new rule for the NY State courts, an elected judge would be ineligible to sit on cases in which a participating party or attorney has contributed $2500 or more to his or her election campaign in the prior two years. The rule would also forbid participating in cases in which parties, attorneys, and firms have collectively contributed $3500 or more. The comment period on the rule runs until the end of April. I'll get the ball rolling here.
Although I think this proposed reform is laudable, the $2500 threshold for individuals strikes me as arguably too high. Granted, it's way way way below the threshold for triggering due process concerns. In the Caperton case, Massey Energy's Don Blankenship had donated $3 million to the campaign of the judge who failed to recuse himself. That extraordinarily large contribution, Justice Kennedy said for the Court, made Caperton the rare case in which a campaign contribution created a due process violation. I'm glad to see that New York proposes to go well beyond what federal due process requires.
Why do I think the threshold is still too high? I'll also grant that it's hard to imagine that an otherwise honest judge would throw a case to reward a donor of a mere $2500, but things need not work exactly that way. Consider an example. Suppose that a hundred lawyers with similar caseloads--medical malpractice plaintiffs' lawyers, say, or white-collar criminal defense lawyers--each contribute $2499.99 to Judge Doe's election fund, hoping that Doe will be sympathetic to their cause in cases down the line. The rule would not be triggered but one could still expect Judge Doe to have at least the appearance of a financial conflict and perhaps an actual conflict.
Now one might think that this is no worse than what happens routinely when judges are elected or, for that matter, appointed, in a process that involves politics. The people who elect or appoint the judge do so in part because of what they know or suspect about the judge-candidate/nominee's views. Other things being equal, we know that CJ Roberts is more likely to be sympathetic to the perspective of the Chamber of Commerce position on any given issue than Justice Ginsburg is--not because CJ Roberts has taken money from the Chamber but simply because he's ideologically sympathetic to their viewpoint. And in fact, that's part of why President Bush nominated him (and conversely, why President Clinton nominated Justice Ginsburg) to the Court in the first place.
So why, one might ask, is it worse for judge candidates to take money from people who want to elect them? One answer is that the line of causation from contribution to judgment is more direct when it runs through campaign contributions than through general ideological sympathy. Another answer may be the lack of transparency. Most of the time most voters know next to nothing about candidates in judicial elections, but at least in states in which judges run for office with party endorsements, voters can use party affiliation as a rough proxy for ideology. (That's why, although I generally prefer an appointed judiciary to an elected one, if a state is going to have judicial elections, I think there is a good deal to be said for partisan rather than nonpartisan elections.) By contrast, even if campaign contributions are nominally public information, they likely won't be known to most voters.
Finally, I'd note that the $2500 threshold may have been set with an eye towards surviving scrutiny under the federal campaign finance cases. That's in the range of contribution limits that the Supreme Court has upheld. By contrast, in 2006, the Court in Randall v. Sorrell invalidated campaign contribution limits on the order of $200-$400. To the extent that the 2002 holding in Republican Party of Minnesota v. White subjects judicial elections to the same body of case law as executive and legislative elections, it's possible that the NY Administrative Board of the Courts thought it had to set a threshold well above the invalidated Randall v. Sorrell limits. But if so, that strikes me as mistaken. After all, the proposed new rule would not limit how much anyone can give to a candidate's campaign for judicial office. It would only require recusal if the threshold is exceeded should the contributor have a case before a successful candidate. The candidate would still get to keep the money.
Thus, my bottom line: I'm very happy to see this proposed new rule; I wish it were stricter.