Richard Briffault has posted this draft on SSRN (forthcoming, DePaul Law Review). Here is the abstract:
In its cases dealing with judicial elections, the Court has cycled back and forth over whether to treat judges as representatives of the voters, like other elected officials, with judicial elections subject to the same constitutional rules as other elections or to emphasize the distinctive nature of the judicial role, which could support special limits on judicial campaign activity. Over a trilogy of cases decided between 2002 and 2015 – Republican Party of Minnesota v. White, Caperton v. A.T. Massey Coal Co., and Williams-Yulee v. Florida Bar – a divided Court has struggled to hold together the First Amendment’s commitment to robust and unrestricted campaign speech with a growing concern for the Due Process value of impartial judicial decision-making and the need to preserve public confidence in judicial integrity. Overall, judicial elections have been treated as very similar to, but not quite the same as, other elections, and some campaign speech restrictions that would be unconstitutional in most elections may be constitutional in judicial elections. This has implications for the regulation of dark money in judicial elections. As in other elections, dark money spending in judicial elections can be subject to disclosure requirements but not spending limitations. Unlike in other elections, in certain circumstances dark money spending in judicial elections could trigger recusal requirements, but the circumstances are poorly defined. In any event recusal is unlikely to be an effective response to the concerns raised by dark money.