Last week I made the point that the importance of the Caperton v Massy decision may be its indirect consequences. To make the case meaningful, there must be disclosure as to who contributes to issue committees in judicial races. I wrote The Real Problem Caperton v. Massey poses to WMC and the Right Wing Fronts. "...For the U.S. Supreme Court decision to have any meaning, there must be disclosure as to the source of the funds. WMC, All Children Matter, Americans for Prosperity, all will have to reveal the funders..."
Legal scholar, legal commentator, and law school professor (I am none of them) Rick Esenberg makes two critical suggestions in his recent post, What Caperton ought not to mean.
Esenberg argues that the facts are so unusual that this kind of occurrence is not likely to happen again. After all Massy poured millions into the West Virginia race dwarfing other contributions. No doubt the standards will vary. A contribution of $25,000 will gain little notoriety in a $3 million race but it might be significant in a $100,000 campaign.
Esenberg also notes that "...In fact, one might just as well argue that there is no due process problem as long as the donors are anonymous. The judge has no idea where the money came from and, therefore, does not know who she is "indebted" to..."
That, of course, is an enormous leap of faith. There are always efforts to build a firewall between the judicial candidate and the issue committee so they do not run afoul of the law. I am not about to accept the fact that the judicial candidate does not get information about who is raising money for the issue committee. The rest of us do not know, but I am not about to accept a denial from Ziegler or Gableman that they had no knowledge or suspicion as to where the millions of WMC Issue Committee funds were raised.
Raise and spend the money - but disclose.