Erwin Chemerinksy and James Sample have written this must-read oped in the NY Times, which begins: “LEGAL elites must come to terms with a reality driven by the grass-roots electorate: judicial elections are here to stay. Given this reality, we should focus on balancing important First Amendment rights to financially support campaigns with due process concerns about fair trials.” The authors argue that the Court should recognize the constitutionality of spending limits in judicial elections. (More from Sample on some of the points in this oped here.)
While I agree with the first part of the thesis (judicial elections are here to stay, and indeed very popular—the movement to appointment procedures don’t seem to be making headway), I have a hard time believing that the current Supreme Court would be open to an argument for spending limits in judicial elections. In Citizens United, Justice at Stake made an excellent pitch in an amicus brief for the Court to leave the constitutionality of spending limits open in judicial elections, especially given Caperton. Justice Kennedy didn’t bite then, even writing an unconvincing attempt to distinguish Caperton in CU, and I’m skeptical about whether he’d ever entertain the argument.