The Supreme Court released its ruling today in Caperton v. A.T. Massey Coal Co., creating a murky “probability of bias” standard that has ominous implications for free speech in judicial elections.
The Center for Competitive Politics filed a friend-of-the-court brief in the case, which was argued in March.
“The Supreme Court has created a novel ‘probability of bias’ standard that is wholly unworkable,” said Center for Competitive Politics Chairman Bradley A. Smith. “The Court has given no guidance on how judges should interpret potential biases, so this ruling will have a chilling effect on citizens engaging in independent speech.”
“Although the Court’s standard is unworkable, the majority made every effort to stress that this is a one-time decision based on exceptionally unique facts,” said Smith, a former FEC Chairman. “You could call this the Bush v. Gore of campaign finance law.”
The case raised 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 donations to an independent advocacy group.
“This decision injects uncertainty into the judiciary and will reduce public confidence in judges as baseless claims of bias become more common,” said Stephen M. Hoersting, CCP’s Vice President and counsel of record on the brief. “But at least the majority rejected the idea that independent advocacy or direct contributions inherently create an appearance of bias, and it seems that even multi-million dollar expenditures would create no problem in most races.”
Justice Anthony Kennedy’s majority opinion seemed to disregard important facts in the case. Kennedy states that “there is a serious risk of actual bias — based on objective and reasonable perceptions — when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”
Massey’s CEO Don Blankenship did not “direct” the judge’s campaign. Justice Brent Benjamin had no say in Blankenship’s independent spending (he only contributed $1,000 directly). “Placing the judge on the case” also stretches the influence of Blankenship, as Benjamin won with a comfortable margin and with the endorsements of all but one major state newspaper.
“This ruling opens up the door to political gamesmanship in order to stack the judicial deck,” Hoersting said. “Individuals or groups will inevitably attempt to engage in independent advocacy for or against judges with the goal of forcing recusal in future cases.”
Chief Justice John Roberts’ dissent, joined by Justices Antonin Scalia, Clarence Thomas and Samuel Alito, lists no fewer than 40 problematic questions the majority’s “probability of bias” standard creates. Such an amorphous standard cannot be defined, the Chief Justice writes, and will lead to an avalanche of litigation undermining the credibility of the court system (at least in the 39 states with judicial elections).
Several questions raised in the Chief Justice’s dissent mirror important issues CCP presented in its brief: How much money is too much money? Does a different standard exist for independent contributions and direct contributions? Does the recusal standard create a “debt of hostility” against those who advocated against a judge? The majority’s only response is that Caperton is an “extreme” case, so there is no need to worry about other cases.
The Caperton ruling today seems to back away from the Court’s most recent decision on free speech judicial elections: In Republican Party of Minnesota v. White, the Court 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 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.”
