Chemerinsky & Sample: Judicial Elections Are Different

I’ve often despaired about the state of election financing in the US. But it is good to see some stalwart reformers, like Ciara Torres-Spelliscy, advance creative proposals for improvement. The New York Times features another compelling proposal from Erwin Chemerinsky and James J. Sample, focusing on judicial elections. Analyzing recent debacles like the Massey intervention in the West Virginia Supreme Court election, they conclude that the legal system must “focus on balancing important First Amendment rights to financially support campaigns with due process concerns about fair trials.” Some of their key points include:

[C]orporate and union officials must [now] engage in a perverse guessing game: they want to spend enough to get their candidate for the bench elected, but not so much as to require the judge’s disqualification if the campaign is successful. . . . [A] study of 29 campaigns in the 10 costliest judicial election states over the last decade revealed the extraordinary comparative power of “super spenders” in court races.

Rigorous recusal rules are an important step, but merely disqualifying a judge on occasion is insufficient. The most obvious solution is to limit spending in judicial races. States with elected judges should restrict how much can be contributed to a candidate for judicial office or even spent to get someone elected. States should restrict contributions and expenditures in judicial races to preserve impartiality. Such restrictions are the only way to balance the right to spend to get candidates elected, and the due process right to fair trials.

Chemerinsky and Sample expertly highlight a conflict between First and Fifth Amendment rights. In Sheppard v. Maxwell, the Supreme Court suggested that the right to a fair trial can limit some rights of the press. It should also set some limits on the advocacy of moneyed speakers who aspire to undue influence in the halls of justice.

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