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.
Via the Brennan Center, a couple of links on Caperton v Massy:
- http://legaltimes.typepad.com/blt/2009/06/coping-with-caperton-a-conversation-with-tom-phillips.html
- http://www.moresoftmoneyhardlaw.com/news.html?AID=1453
"Caperton established a principle that is really important: There are constitutional concerns with a judge sitting in judgment of a case where a party is a significant donor. At some point, the support becomes so substantial and so overwhelming that due process requires the judge to step aside, even if neither the donor not the judge did anything illegal or even unethical. Until now, that was an unanswered issue. That's the most important thing in the case."
- former Texas chief justice Thomas Phillips, now a partner at Baker Botts.
Posted by: mal | June 17, 2009 at 07:49 AM
mal -- thank you for this great source and reference. It says it very well.
Posted by: paul | June 17, 2009 at 09:23 AM
Esenberg is wrong in suggesting that the circumstances of the West Virginia case are so unusual that they are unlikely to be repeated anywhere. An eerily similar situation already has unfolded right here in Wisconsin in the Menasha Corporation tax case. WMC intervened on Menasha's behalf and submitted a "friend of the court" brief. After spending over $2 million getting Annette Ziegler elected to the court (http://www.wisdc.org/pr072307a.php), Ziegler provided the deciding vote in a 4-3 ruling and wrote the majority opinion siding with Menasha and overturning the lower court.
The end result of the ruling is a $300-million-plus corporate tax break. So in West Virginia, a CEO spends $3 million to get a $50 million judgment against his company thrown out. Here, a business lobby group spends $2 million to get a $300M tax break for its members.
We're going to see many more cases like this if something is not done to turn these Supreme Court auctions back into elections.
Posted by: Mike McCabe | June 17, 2009 at 12:10 PM