Citizens United Called Grave Threat for America’s Courts
Ruling Makes Election Reform ‘More Urgent Than Ever,’ Justice at Stake Says
The Citizens United ruling poses grave dangers to America’s elected state courts, said Justice at Stake, a national judicial watchdog group. Noting that special-interest spending on court elections has exploded in the last decade, the group is calling for immediate reforms to assure the public that justice is not for sale.
“Citizens United has raised the threat facing elected courts to an unprecedented level,” said Bert Brandenburg, executive director of the nonpartisan Justice at Stake Campaign. “But it hasn’t ruled out meaningful campaign reforms to protect our courts. Indeed, it has made common-sense election reforms more urgent than ever.”
Specifically, Brandenburg said momentum is building for public financing of court elections, to protect judges from having to raise campaign funds. He also said the Supreme Court has given a green light for states to force all those who spend money in elections to reveal their financial sources.
In addition, states are considering rules that could discourage judges from handling cases involving major campaign benefactors, while a few are considering eliminating competitive elections for court seats.
“Under our Constitution, courts have a unique legal obligation to be fair and impartial, and the public overwhelmingly expects even-handed justice,” Brandenburg said. “No one should get VIP treatment at the courthouse by helping to bankroll an election campaign.”
On Jan. 21, the Supreme Court issued its long-awaited, and instantly controversial, ruling in Citizens United. Overturning long-standing precedents and laws dating back more than a century, the court declared that corporations could not be barred from spending on election campaigns.
Although the First Amendment ruling will eventually affect all federal and state elections, a striking exchange in the Supreme Court’s opinion made it clear that there was special concern about state courts, where election spending has soared in the last decade. State Supreme Court candidates raised $200.7 million from 1999-2008, more than double the $85.4 million raised in the previous 10 years.
In his dissent, Justice John Paul Stevens warned, “At a time when concerns about the conduct of judicial elections have reached a fever pitch … the Court today unleashes the floodgates of corporate and union general treasury spending in these races.”
Stevens’ opinion cited an amicus brief filed by Justice at Stake, signed by 20 legal and civic reform groups, in outlining his concerns.
Even before the ruling, states already were wrestling with ways to protect the unique role of courts from special-interest influence.
In December, Wisconsin became the third state to provide public financing for appellate court races, so that judicial candidates would not have to seek money from those appearing before them in court. That same month, Michigan’s Supreme Court issued new rules making it harder for justices to hear cases involving major campaign supporters.
Last year, the Supreme Court itself heard a blockbuster case involving the intersection of Supreme Court elections and special-interest spending. In Caperton v. Massey, it ordered a West Virginia justice to step down from a case involving a coal executive who spent $3 million to help elect him.
Brandenburg said the Citizens United ruling, while threatening a new cash deluge in court elections from corporate treasuries, contained an important silver lining. By an 8-1 vote, with only Justice Clarence Thomas dissenting, the court ruled that all groups that spend to influence elections can be forced to disclose their financial sources.
“This is a critical victory for fair, open elections,” Brandenburg said. “States that elect judges should immediately enact strong, real-time reporting laws, so that special-interest spending is forced into the sunlight. Voters have a right to know who is paying to put judges on their courts.”
The Supreme Court also has repeatedly permitted state court systems to enact rules that discourage elected judges from hearing cases involving financial supporters. And states also can choose to appoint judges. While some form of judicial elections are held in 39 states, 22 states have competitive elections for Supreme Court justices. The remaining 28 states have some form of appointment system.
Most of the 22 states with competitive Supreme Court elections could be affected by the Supreme Court ruling, now or in the future.
A Montana Justice Department study said 24 states have laws banning or severely limiting corporate electioneering. Of the states listed in the study, 12 have competitive Supreme Court elections. They are: Alabama, Kentucky, Michigan, Minnesota, Montana, North Carolina, North Dakota, Ohio, Pennsylvania, Texas, West Virginia, and Wisconsin.
Of the 10 states that elect Supreme Court justices but are not included in the Montana study, six have limits on corporate contributions to candidates of $10,000 or less. Those states are: Arkansas, Georgia, Idaho, Louisiana, Mississippi, and Washington. In 2010, 17 states will hold contestable Supreme Court elections.
“Citizens United has upped the ante and made further delay unacceptable,” Brandenburg said. “Americans expect their courts to be fair and impartial, with no under-the-table influence. We have to act quickly and firmly if we’re going to keep them that way.”
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The Justice at Stake Campaign is a nonpartisan, nonprofit campaign working to keep America’s courts fair and impartial. Justice at Stake and its 50-plus state and national partners educate the public, and work for reforms to keep politics and special interests out of the courtroom—so judges can protect our Constitution, our rights and the Rule of law. For more about Justice at Stake, go to www.justiceatstake.org, or www.gavelgrab.org.
Justice at Stake’s amicus brief in Citizens United is available online. JAS also has a fact sheet on the Citizens United case.