The Supreme Court will be hearing arguments today in Caperton v. Massey Coal, a case about independent political spending and judicial recusal. The central question is this: do constitutional protections for due process require that a judge recuse himself or herself from cases involving a third party that independently spent significant funds in their race?
CCP filed an amicus brief in case arguing 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, which independent political speech does not create.
So-called “reform” groups and their allies are hoping for a ruling that would require recusal, opening the doors to further limits on independent political speech. Others, including the editorial page of USA Today, sense an opening for the silver bullet of taxpayer funded judicial campaigns.
Today’s USA Today approvingly cites the example of North Carolina, which doles out taxpayer dollars to candidates for judge. Overlooked or at least not fully realized by USA Today is the fact that taxpayer funding of judicial candidates does not eliminate third party expenditures, which is what is at issue in Caperton v. Massey Coal.
The good folks at USA Today were kind enough to offer me an opportunity to argue against so-called “clean elections” for judicial candidates. One of the things I point out in my guest counterpoint is that in the 2006 judicial elections in North Carolina, a group called FairJudges.net spent about $260,000 praising four candidates running for North Carolina’s Supreme Court. The group was funded primarily by North Carolina’s trial lawyer association, the Service Employees International Union (SEIU), Teamsters Union, and the state Democratic party (i.e. the “special interests” that “clean elections” are supposed to eliminate from judicial elections). All four candidates won their races.
One of the things I didn’t point out in the piece, however (due to space limitations), is that the NC Supreme Court has seven members, meaning that if the recusal standards being demanded by Caperton were to go into effect, a majority of justices in the Tar Heel State may have to disqualify themselves in any cases involving the state Democratic party, Teamsters, the SEIU, and – well, who knows who else. Every trial lawyer in the state? Just those in leadership positions with the organization? I suspect there would be several lawsuits alone just trying to resolve the question of which trial lawyers were sufficiently involved with FairJudges.net’s ads to trigger recusal.
Those taking Caperton’s side in the argument before the U.S. Supreme Court might argue that not all independent speech triggers recusal requirements, just speech of a sufficient magnitude ($3 million in the case at hand). But they also make much of the fact that the independent spending in question was 60% of the total spent on behalf of the winning justice’s campaign, seemingly suggesting that this at the very least is the trigger for when independent speech should trigger recusal.
Including independent spending the state Democratic party spent in support of judges as well, nearly $385,000 in advertising was run in the final days of the election on behalf of the four favored justices, more than 95% of the approximately $400,000 in independent expenditures spent by all parties for any judicial candidate in North Carolina’s 2006 judicial elections, and more than spent by each individual candidate except for the Chief Justice candidate, who spent around $435,000.
It would thus seem that applying the 60% threshold to North Carolina would disqualify four of the seven sitting justices on the North Carolina Supreme Court, including the three “clean” justices elected with taxpayer dollars (one of the judges appears to have relied on traditional fundraising), from hearing any case involving the major contributors to FairJudges.net.
Just for fun, I called the North Carolina Supreme Court’s clerk and asked if there had ever been a case where a majority of the justices had been forced to recuse. She said there hadn’t ever been such a case to her knowledge, although in the 90’s it looked at one point like five of the seven might have to in a tobacco case. But apparently the recusal issues were resolved among the parties and the full court heard the case.
If the “Caperton Standard” were to be adopted by the Supreme Court, North Carolina stands as evidence that even “clean elections” for judges won’t stand in the way of the recusal chaos that would ensue.
