Campaign Finance Reform and Free Speech: How much is too much to buy a Judge?

For those of us who get involved in campaigns, the issues of campaign contributions and free speech are discussed as often as we breath air. Here in Virginia, in order to become a judge a person has to be appointed and then voted on my members of the General Assembly. In 39 other states, Judges are chosen in partisan elections. This is how it’s done in West Virginia and with the generosity of Massey Energy’s chief executive, Don Blankenship, bankrolled the judicial campaign of West Virginia Supreme Court Justice Brent Benjamin. So, how much did Don Blankenship give to Benjamin’s campaign for the West Virginia Supreme Court in 2004? $3 million!

Most Congressional campaigns don’t even come close to costing $3 million. So, what did Don Blankenship get for $3 million in campaign contributions to Supreme Court Justice Brent Benjamin? According to two Associated Press stories in the Virginian Pilot on June 8th and 10th, a favorable ruling in a case that Massey Energy appealed involving another coal company, Harmon Mining Co. In this instance, West Virginia Supreme Court Justice Benjamin declined to recues himself from the case despite an obvious conflict of interest and favorable bias towards Don Blankenship and Massey Energy. The Supreme Court Justice that Benjamin defeated, former Justice Warren McGraw, had voted against Massey Energy in the case in question. With Justice Benjamin, the ruling went the other way on a 3-2 vote and overturned the $82.7 million verdict in favor of Massey Energy. $3 million to bankroll a Supreme Court campaign seems like a bargain in comparison.

This past Monday the United States Supreme Court, who do not campaign for their lifetime appointments (wink), ruled 5-4 that in this case the refusal of the justice in question to remove himself from hearing the case that involved “the most generous supporter of his election deprived the other side of the constitutional right to a fair hearing.” The justice ruling in the majority were Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens. Ruling in the minority were Chief Justice John Roberts, and Justices Samuel Alito, Antonin Scalia and Clarence Thomas. Writing for the majority opinion, Justice Kennedy stated:

"Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when - without the consent of the other parties - a man chooses the judge in his own cause," and went further to say "Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge's recusal, but this is an exceptional case,"

Chief Justice Roberts wrote the dissent and stated:

"But I fear that the court's decision will undermine rather than promote these values," as to maintaining and independent judiciary.

The ruling by the majority of the United States Supreme Court overturns the favorable verdict that involved, now West Virginia’s Supreme Court Chief Justice, Brent Benjamin. The ruling did not imply misconduct or wrong doing, but sent a clear message that with such disproportionate financial support for a candidate in a Judicial campaign there is very little way for impartiality to be maintained when cases come before them involving the campaign benefactor.

While there are those that would argue that this ruling stifles free speech, I am of the opinion that this type of support does more to stifle the free speech, civic participation, and access to elected leaders for the rest of society that can’t give $3 million to a campaign. While we don’t electe our Judges or Justices here in Virginia, we do elect the people that vote on their confirmation to the bench. Virginia has the most lax campaign finance laws in the nation at the state and local level. Anyone, any business or company, can give to a campaign with no limit on the amount of the contribution. The only requirement is to fully disclose the amount given and by whom.

Thank goodness for the Virginia Public Access Project that tracks in-state contribution. We know who and what businesses and industries have the greatest access in the Commonwealth and who they have access to. It’s pretty clear that very few of us have the access to our elected leaders that these folks do and that we have very little influence except if public opinion is so overwhelming that elected officials risk being voted out. Elected official know two things for sure, money and votes. If you don’t have money but you can organize people, you have influence. If you have both, you have even more influence. And President Eisenhower warned us about the Military Industrial Complex.