By Mike Dorf
Erwin Chemerinsky and James Sample have an interesting Op-Ed in yesterday's NY Times. They argue: 1) that the noble battle for appointed rather than elected state judges is a lost cause, because the public consistently rejects the idea--e.g., by a tidy margin in Arizona, even with retired Justice Sandra Day O'Connor vigorously campaigning for the change; 2) therefore, reformers should shift their efforts from seeking to replace elections with appointments and instead concentrate on mechanisms for reducing the baleful influence of cash on judicial elections; 3) to that end, state legislatures should enact campaign spending limits that even apply to so-called "independent expenditures," i.e., spending for ads and other efforts by private parties unaffiliated with the judges or their campaigns--including private parties who have or will have cases before the judges whose elections they bankroll; and 4) the Supreme Court should uphold such limits even though current doctrine makes similar limits unconstitutional in non-judicial elections. Here I want to offer a friendly amendment to the Chemerinsky/Sample proposal.
First, some doctrinal background: Ever since the 1976 Supreme Court ruling in Buckley v. Valeo, limits on campaign expenditures--the lion's share being money spent for political advertising--have been subject to closer judicial scrutiny than limits on campaign contributions. The line has been questioned from both the right (which seeks to invalidate not just expenditure limits but nearly all contribution limits as well) and the left (which wants to permit greater restrictions on expenditures), but absent the formation of a 5-Justice consensus on what would replace Buckley, it survives. Chemerinsky and Sample do not propose to do away with the expenditure/contribution line. Rather, they argue that the very strong interest in ensuring unbiased justice justifies expenditure limits in judicial elections, even under the very-difficult-to-satisfy test the Court has articulated.
The key move for Chemerinsky and Sample is to generalize from the Supreme Court's 2009 decision in Caperton v. Massey from recusal to direct limits. In Caperton, the Court found that $3 million in independent expenditures to elect a judge required, as a matter of due process, that that judge be recused from a case involving the financial interests of the person who made those expenditures. In an academic article on which the Times Op-Ed is partly based, Sample argues in greater detail why Caperton should be understood to entail that states have a compelling interest in corruption of the judicial process that makes expenditure limits permissible in judicial elections even when they wouldn't be permissible in other elections.
What to make of this? I think it is an open question whether Caperton's logic applies to actually limiting independent expenditures relating to judicial elections--as opposed to simply requiring recusals of judges in particular cases where some expenditure limit has been exceeded. If I were a lower court judge, I would probably agree with Chemerinsky and Sample. But I am not especially confident that five Justices of the Supreme Court would see it the same way.
That leads me to my friendly amendment. I would urge any state legislature that is considering enacting the Chemerinsky/Sample proposal to include in it a "fallback provision" of the following form: In the event that a court holds the contribution and/or expenditure limits of this Act unconstitutional, any judge whose judicial election campaign was aided by any person or entity that made contributions or independent expenditures in excess of the foregoing limits shall be recused from sitting on any case involving the interests of that person or entity for a period of X years.
The fallback would be similar to a proposed New York law about which I previously blogged, but my fallback would be broader, applying to independent expenditures as well as to campaign contributions. Although it would probably be cleaner for a state legislature simply to set expenditure limits directly, as proposed by Chemerinsky and Sample, my proposed fallback has the advantage that it could potentially be sustained by the Supremes even if they are unwilling to apply Caperton to direct limits on expenditures. And by structuring the provision as a fallback, rather than enacting only the Chemerinsky/Sample proposal and hoping for the best, a legislature could plan for the contingency of invalidation without having to work up the political momentum for a separate law (such as the fallback) after the invalidation of the initial law.