The U.S. Supreme Court has ruled that prohibitions on corporate-funded mass media in federal elections are unconstitutional. This ruling will almost certainly apply to like efforts by labor unions and lawyers and to the election of judges in 39 states. Whether we know it yet or not, the Supreme Court’s decision in Citizens United v. FEC, will come to be seen as the third horseman of the apocalypse for lawyers, judges, and those who favor the direct election of state judges.
Standing alone, Citizens United does not necessarily condemn state judicial elections, but it hardly stands alone. In 2002, the Supreme Court decided Republican Party v. White, which, like a first horseman, heralded the beginning of the end of state judicial elections. There, the Court found that judicial candidates enjoyed the same free speech rights as other office seekers, meaning that special ethical prohibitions on how they campaign have fallen. States can no longer stop judges from aligning with political parties, declaring their “position” on a policy issue, or directly soliciting campaign contributions from the lawyers or litigants who appear before them. In casting the deciding fifth vote in White, Justice O’Connor expressed her strong disfavor of the direct election of judges, but noted that states choosing elections have to live with consequences of that choice. Those consequences are getting more severe with each new Supreme Court decision.
The White decision was hardly surprising. The Supreme Court had rejected the argument that the administration of justice is somehow sacrosanct when it struck down rules banning lawyer advertising in 1977. But the ensuing onslaught of lawyer advertising on the sides of buses and telephone directories has done little to inspire public confidence in the organized bar or the legal process. Trash-talking judicial advertisements on TV and radio will yield the same caustic effect for the state judiciary and, by extension, state governments.
After White, a case like the 2009 Caperton v. Massey debacle (our second horseman) was inevitable. In Caperton, a coal company faced a $50 million fraud judgment in West Virginia. Acting in accord with the state’s election rules and human nature, the company’s CEO poured $3 million to the campaign of a candidate. When that candidate was elected Justice and sided with the coal company, the U.S. Supreme Court granted the case and ultimately decided that the federal Due Process Clause prevents a judge from sitting when a person with a personal stake in the case had “a significant and disproportionate influence” in placing the judge on the bench.
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No Texas case has yet attempted to resolve the implications of White or Caperton for the state’s judicial elections. Texas law limits the amount that any individual or political action committee can contribute to $5,000 per election with $30,000 cumulative per law firm and its lawyers and, at the moment at least, bars direct corporate giving. Still, the money necessary to run an effective campaign has risen dramatically and the campaigns had already taken on a bruising quality before the Supreme Court decided that corporations, trial lawyers and unions enjoy a constitutional right to run their own TV and radio advertisements. Meanwhile, Texas is now home to more Fortune 500 companies than any other state, and demographic change and increasing unionization efforts will make future judicial elections ground zero for the resulting conflicts to play themselves out.
The fourth horseman will be a case currently pending or soon to be filed in a Texas state court somewhere. The outcome will have huge consequences for one or both sides, as they often do. But this time one side will find $5,000 too little support for a favorable judge or candidate. Why just try to buy a judge, when you can destroy his opponent with an onslaught of direct TV ad buys? And if one faction is doing it, won’t the others be forced to respond in kind?
This time, when the survivor of this election takes the bench with the support of some corporate litigant or wealthy trial lawyer, it won’t just look like someone bought a judge or a favorable decision, it will look like it in primetime and in full public view. Pulling the judiciary out of that ditch may be impossible, or at least take generations. Meanwhile, the voters are likely to assume that the whole government is rife with corruption or at least that the other departments are incompetent to devise a way to save the judiciary. They won’t know or care what the Supreme Court held in White or Caperton, or Citzens United. They’ll just lose confidence in the rule of law and their government.
These recent Supreme Court decisions spell doom for judicial elections. We should recognize it now and move to some form of merit-based selection for our judiciary while there is still some hope of retaining the public’s confidence in what the founders designed to be the non-political branch of government.
Attorney David Schenck, a self-described "active Republican," is a partner in the Issues & Appeals section at Jones Day in Dallas.
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