May 21, 2013
The Best Justice That Money Can Buy
Posted on Nov 3, 2009
Sen. Russ Feingold has called the glut of unlimited campaign contributions nothing more than “legalized bribery.” And who among his legislative colleagues deserves to be hit with this denunciation? “Not me,” say Max Baucus, the largest single recipient of health industry funds, and Joe Lieberman, the senator from Aetna Insurance, and, for that matter, just about all of the rest of Congress.
In June 2009, the U.S. Supreme Court considered the intended effects of campaign contributions when it ruled in Caperton v. Massey that a West Virginia judge who failed to recuse himself had run a “serious risk of actual bias” because a person with a personal stake in the case had acquired “significant and disproportionate influence” over the judge by having raised funds for him and directing his election campaign. The issue, Justice Anthony Kennedy wrote for the court, “centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.”
One-time U.S. Solicitor General Theodore Olson, now counsel for many conservative causes, insisted in Caperton that the “improper appearance” of campaign money in judicial elections was critical. “A line needs to be drawn,” he said, “to prevent a judge from hearing cases involving a person who has made massive campaign contributions to benefit the judge.”
Now comes Wisconsin’s Supreme Court, which, in a 4-3 vote, has drawn a different line and adopted a rule stipulating that campaign contributions, endorsements and paid ads are not enough to force recusal. The majority acted to “send a message that making lawful contributions is not a dishonorable thing to do and it’s not a dishonorable thing to receive.”
In a hearing on the ruling, the League of Women Voters and a retired associate justice proposed that recusal be triggered if a judge had received a contribution of more than $1,000 from a single source. In the end, two prominent lobbying groups, the Wisconsin Realtors Association (WRA) and the Wisconsin Manufacturers & Commerce Association (WMC), persuaded the court that unlimited contributions are protected “free speech.” Two of the four judges of the Wisconsin Supreme Court are beneficiaries of the WRA and WMC’s largesse.
Wisconsin, which likes to see itself in the mirror of its century-old tradition of squeaky-clean progressive government, has had two Supreme Court elections in recent years, contests marked by the influx of WMC money. The manufacturers and commerce group carefully selected unknown, quite obscure lower court judges Annette Ziegler and Michael Gableman as candidates. The WMC lavished an unprecedented $2 million on each and financed deceitful ads. For the first time in 41 years, a Wisconsin Supreme Court election—Gableman’s—resulted in an incumbent’s defeat. In the state court’s ruling on campaign contributions, both successful candidates were in the majority. Money trumps all.
For Wisconsin, the change is all too apparent. Forty years ago, the state tried a state legislator accused of accepting a $50 bribe. Later, a district attorney brought charges against a highly respected state senator for allegedly illegally making two overseas telephone calls.
Justice Ziegler stepped aside in 2007 in a case between the WRA and the town of West Point after the town noted she had received $8,625 in campaign contributions from the realtors association. The court divided and returned the case to the lower courts, which ruled in favor of the town. But several months later, Ziegler participated in a case that the WMC considered critical and she wrote a 4-3 decision favoring the organization’s position, resulting in hundreds of millions of dollars in business tax refunds.
After her election, Ziegler’s new high court colleagues rather gently reprimanded her for not recusing herself in cases involving a bank where her husband was a paid director. Some reprimand.
Gableman’s election brought complaints from lawyers that he had violated the judicial code by lying about his opponent’s record.
Gableman, the court’s newest judge, unabashedly supported the WMC’s position on the campaign contributions rule. Gableman ripped into the League of Women Voters—notoriously nonpartisan—calling it a “left-wing” group that advocated the regulation of campaign speech and demanded government “regulators” who would oversee judges. Gableman said the WMC’s approach properly “memorializes the First Amendment rights of the people to express their political views.” For Gableman, First Amendment rights are all about money—and probably not much else. At one point, he demanded that a spokesperson for the League of Women Voters account for George Soros’ contributions to the group.
Progressive attorney Ed Garvey, a veteran of notable run-ins with the state court on its ethical rulings, said the court’s majority served notice that “it ain’t [a fight using] bean bags—it is pitched battle. A once great court is deeply divided, with a majority that believes money is speech! Absurd but real.”
Money is awash in our politics, and it has invaded the judicial arena. Retired Justice Sandra Day O’Connor has noted that 14 states since 2006 broke records for spending in state judicial contests. She particularly drew attention to the influx of special interest money in state judicial elections, calling it a dangerous threat to “the integrity of judicial selection,” one that could “compromise public perception of judicial decisions.”
O’Connor said she feared that the judiciary would become “another political arm of the government.” It is somewhat late in the day to lament the politicization of the judiciary, a condition that has always existed, but extravagant campaign contributions have now perilously altered the landscape.
Justice O’Connor must be appalled by the Wisconsin ruling. Perhaps it challenges the U.S. Supreme Court’s Caperton decision, which held that campaign contributions could force a judicial recusal. The Caperton majority confronted determined dissenters, led by Chief Justice John Roberts and Justice Antonin Scalia. Will the Wisconsin ruling provide them with new ammunition and cover in following Wisconsin’s lead? The fight over O’Connor’s concern for “the integrity of judicial selection” is not over.
Equal justice under equal law for all, we often proclaim; but when disproportionate advantage is given to one class or one group, the damage to that tenet is profound. We struggle today with the consequences of legislation that effectively reduced government’s power to regulate unbridled buccaneering in the pursuit of wealth for individual gain, and at the expense of many. The Wisconsin state court judges denounced “regulators” and invoked the insidious notion that we should trust our watchmen to watch themselves. What happened in Wisconsin is a microcosm of our present nightmares and failures.
Stanley Kutler is the author of “The Wars of Watergate” and other writings.
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