Document Type

Article

Publication Title

NYU Annual Survey of American Law

Publication Date

2011

Abstract

The Supreme Court recently decided in Caperton v. A.T. Massey Coal Co. that substantial independent expenditures in support of a judicial candidate present threats to judicial impartiality similar to those posed by direct contributions. This Article posits that the Caperton holding, guaranteeing due process of law in state courts, presents a compelling state interest justifying the regulation of spending in judicial elections.

The Supreme Court's landmark decision in Buckley v. Valeo is understood to hold that only an "anti-corruption" rationale can justify campaign finance regulations. Buckley drew a rigid distinction between political campaign "expenditures" and "contributions, " holding that the anti-corruption interest justifies regulating only the latter. This Article asserts that the contribution-expenditure distinction is particularly counterproductive in the judicial election context, precisely because due process of law is fundamental to the courts to a degree unmatched by the risk of corruption in the constituent branches.

The Article starts by documenting the exponential increases in campaign cash and the newly central roles played by massive, and often highly secretive, independent expenditure campaigns in high-profile judicial elections over the past decade. It then asserts that Caperton's approach is therefore a refreshing rejection of formalism in these compelling and new circumstances. If embraced more widely, the norms that inform the Caperton approach can mitigate the emerging constitutional crisis in our state courts that Justice O'Connor, among others, so aptly describes.

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