The Center for Competitive Politics (CCP) filed a friend-of-the-court brief with the U.S. Supreme Court today in the case of Caperton v. A.T. Massey Coal Co., Inc., No. 08-22. The case raises the question of whether an elected state supreme court justice must recuse himself because a litigant’s CEO previously exercised his First Amendment rights to speak out in the judicial election through his own spending and contributions to an independent advocacy group.
CCP’s amicus brief explains that the Supreme Court should not venture down the path toward forced recusal based on independent campaign speech because the "bias" standard for recusal requires a judge to have a "direct, personal, substantial, pecuniary interest" in the case being heard. That well-established "bias" standard is a much higher bar than the "corruption" standard used in the Court’s campaign finance jurisprudence.
"If the Supreme Court rules that independent campaign speech creates an unconstitutional ‘bias or its appearance’ in elected judges that do not recuse, then lower courts will infer that independent expenditures create ‘corruption or its appearance’ in elected legislators that do not abstain," said Stephen M. Hoersting, CCP’s Vice President and counsel of record on the brief. "Such a ruling would be contrary to the Supreme Court’s landmark campaign finance ruling in Buckley v. Valeo, with free speech being the inevitable casualty."
Since the Supreme Court has already held that independent speech does not raise any threat of corruption, CCP’s brief makes it clear that independent speech in judicial campaigns cannot cause "bias" in an elected judge.
CCP’s amicus brief warns the Supreme Court not to rule that an elected judge must recuse because citizens independently speak out for or against a judicial candidate. Indeed, CCP’s brief quotes the Court’s most recent decision concerning free speech in judicial elections, which ruled that "the First Amendment does not permit" a state to leave "the principle of elections in place while preventing … discuss[ion of] what the elections are about." The Supreme Court further explained that, "[i]f the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process … the First Amendment rights that attach to their roles."
"Petitioners and campaign finance ‘reformers’ should not – and must not – be permitted to use this case as a backdoor attempt either to undermine the Supreme Court’s holding that independent campaign speech does not create corruption or to undo the Supreme Court’s ruling that free speech must be permitted in judicial election campaigns," said CCP’s Chairman Bradley A. Smith, a former chairman of the Federal Election Commission.
CCP’s brief emphasizes that the First Amendment offers its fullest protections to independent political speech. Forcing judicial recusal based on constitutionally-protected independent speech and association would carry a serious and troubling potential to damage this Court’s First Amendment jurisprudence in the context of campaign finance and elections dating back more than three decades.
The Supreme Court will hear oral arguments in the Caperton case on March 3, with a decision expected before the justices complete their summer term.
