Stanching the Cash Flow

By Chemerinsky, Erwin; Sample, James | The American Prospect, October 2011 | Go to article overview

Stanching the Cash Flow


Chemerinsky, Erwin, Sample, James, The American Prospect


The influence of special-interest money in the corruption of state courts has been well documented. In 39 states, at least some judges are elected, and the costs of these elections are escalating dramatically. The money for such campaigns comes primarily from lawyers and litigants with matters before the courts. At the very least, this system undermines the public's perception of the integrity of courts and their rulings. More than seven in ten Americans surveyed said they believe campaign cash influences judicial decisions. Nearly half of state-court judges agreed. The pervasive perception and increasing reality of monetary influence in judicial decision-making weakens a cornerstone of American democracy.

What can we imagine by way of remedy? There are two distinct paths. In the first approach, states would accept judicial elections but mitigate monetary influence by combining rigorous recusal rules with limits on campaign expenditures. In the second scenario, states would shift from election of judges to executive appointment and merit selection. Each approach has advantages and disadvantages, both in terms of the substance and the political reality of reform. But whichever path is chosen, reform in judicial elections is imperative.

Though the Supreme Court has lately taken an expansive view of money as speech, there is reason to believe that even the Roberts Court might recognize that judicial elections are different from others and accept limits that would not be allowed in elections for the legislative and executive branches.

In the last few years, in a series of 5-4 decisions, the conservatives on the Court have declared unconstitutional several campaign-finance laws designed to prevent corruption and to ensure greater equality in the electoral process. However, none of these recent cases involved laws regulating campaign spending in judicial elections. The Court might be more accepting of the need to limit the role of money in the selection of judges. Two years ago, in Caperton v. A.T Massey Coal Company, the Court ruled that due process was violated in a high-profile West Virginia case. A state supreme court justice participated in the case after the CEO of a company in the litigation had spent $3 million to get the justice elected. In Caperton, the Court emphasized the "extreme facts," including the timing of the expenditures and the amount of the CEO's support, which totaled more than all other expenditures supporting the judicial candidate combined. In such circumstances, the Court declared, "the probability of actual bias rises to an unconstitutional level." Significantly, this was also a 5-4 decision--but with Justice Anthony Kennedy siding with the Court's moderates and liberals as the swing vote and writing the opinion for the majority. In other recent cases, Kennedy joined the Court's conservatives in striking down campaign-finance reforms directed at other branches of government.

A legislator is not disqualified from voting on a bill that benefits those who spent a great deal of money for his or her election; the legislator gets in trouble for bribery only when there is an explicit quid pro quo. But judges are different. Due process requires an impartial decision-maker, and judges are expected to decide the cases before them on the merits, rather than to please constituents or donors. Therefore, campaign-finance laws that would not be allowed for elections of legislators or executive officials might be permitted in judicial elections, even by the Roberts Court, given Justice Kennedy's views.

THREE KEY APPROACHES

to campaign-spending reforms in judicial elections are recusal rules, spending limits, and public funding. A minimal first step is for states to adopt rules, as recommended by the American Bar Association, requiring recusal of judges from cases where a party has spent more than a designated sum to elect the person to the bench.

More dramatically, the Supreme Court should uphold limits on campaign expenditures in judicial races that otherwise would not be allowed. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Stanching the Cash Flow
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.