August 20, 2010

Sample: Contributions, Expenditures, and Caperton Contributions

Hofstra Law Professor James Sample sends along the following guest post:

    Rick Hasen is a friend and mentor for whom I have the utmost respect and admiration. And--in yet another testament to Rick exemplifying the highest, but oft-ignored ideals of the blogging genre--he invited this guest post precisely because he knows that I disagree with him, though only with respect to one small part of his analysis.

    In June, 2009, Rick did something rather remarkable on this blog: he suggested that a Supreme Court Justice had made an inadvertent error in Caperton v. A.T. Massey Coal Co. Inc., radically changing its meaning. In blogging on the date of the decision in Caperton, involving constitutional standards dictating when a judge must recuse himself based on campaign contributions, Rick noted that "given the key distinction in campaign finance law between contributions and expenditures," he "thought it was very curious that Justice Kennedy frames the issue at the beginning of the case as follows: 'The basis for the motion was that the justice had received campaign contributions in an extraordinary amount from, and through the efforts of, the board chairman and principal officer of the corporation found liable for the damages.'"

    In fact, the campaign support in Caperton took the form of a $1000 statutory maximum contribution and $3 million in independent expenditure support--a sum greater than all other support for that candidate combined. Rick suggested that this was an unwitting error: "Perhaps this inadvertent equating of contributions and expenditures will disappear when this opinion is finalized for the U.S. Reports."

    Today, the Seventh Circuit, in a clear and pointed opinion by conservative judicial stalwart Frank Easterbrook, confirmed that without public confidence the judiciary "cannot function" and that thus, "[p]reserving that confidence is a compelling interest." Referencing Caperton, Judge Easterbrook writes today that: "It is easy to say that a judge who has a financial stake in the outcome is not impartial. But how about a judge who receives a campaign contribution from one side? A big campaign contribution? A whopping campaign contribution? See Caperton ($3 million from one donor, more than all other contributions combined)."

    In Rick’s view, Judge Easterbrook is merely repeating Justice Kennedy’s "inadvertent" equation of contributions and expenditures. In a forthcoming paper, posted today on SSRN, I assert that, rather than imagining away a key aspect of the Court's opinion in Caperton as a scrivener's error, the Court--and likewise, today, Judge Easterbrook, should be taken at their word: with respect to judicial elections, at least, substantial independent expenditures present a significant challenge to due process, akin to, if not greater than, the risk of corruption applicable to direct contributions in the constituent branches, and that the compelling state interest in impartial courts--and the perception thereof--thus justifies greater regulation of judicial campaign expenditures.

    Justice Kennedy's sub silentio equation of contributions and expenditures, which has been a focal point for critics of the decision, is not only intentional, but is also among the most compelling aspects of the decision and a model for prospective judicial campaign reform. Coining the term "Caperton contributions" to describe massive independent expenditures in the judicial elections context, I assert that, in light of the New Politics of Judicial Elections, Justice Kennedy's sub silentio treatment of independent expenditures as contributions is a refreshing rejection of formalism in a circumstance where, if Buckley's rigid contributions/expenditures distinction had been controlling, the focus of analysis would have been $1,000 in campaign contributions as opposed to $3 million in expenditure support. It is worth noting that, without Justice Kennedy's vote, that very head-in-the-sand result would have obtained in the Supreme Court. Although the majority opinion in Caperton did not elaborate on the reasoning behind the interchangeable use of the terms, Caperton--and today's similar statement by Judge Easterbrook--reflect a realpolitik grounding that I find to be not only not unwitting, but a constitutionally and structurally appropriate mode of analysis--accommodating both the First Amendment and Due Process--despite the pragmatic challenges posed by the reality that judicial elections, for better or worse, are not going away any time soon.

Posted by Rick Hasen at August 20, 2010 04:01 PM