Is Caperton Really About Free Speech?

Former FEC Commissioner and longtime law professor Bradley Smith and his Center for Competitive Politics colleague Jeff Patch co-authored an interesting op-ed on Caperton v. A.T. Massey Coal for the WSJ. The case involves a claim that Caperton's due process right to an impartial tribunal was violated when a justice of the West Virginia Supreme Court, Brent Benjamin, failed to recuse himself despite Massey Coal CEO Don Blankenship's expenditure of $3 million to unseat the incumbent justice Benjamin replaced. While most coverage of the case suggests the issue is whether wealthy individuals or corporations can "buy" favorable judicial outcomes through campaign expenditures, Smith and Patch suggest that Caperton is best understood as a case about political speech in the context of judicial elections. They warn that a decision overturning the West Virginia Supreme Court's invalidation of a $50 million verdict for Massey Coal could have profound First Amendment implications.

most stories portray Mr. Blankenship as having in effect "bought" a justice in order to win a favorable outcome in his case. But Mr. Blankenship did not contribute $3 million to Mr. Benjamin's campaign; he spent the money on his own. Mr. Benjamin did not request Mr. Blankenship's aid, discuss the spending with him, agree to anything, or even meet him until 2006. . . .

Does it matter? Even if Mr. Blankenship spent his money without Mr. Benjamin's consent or prior knowledge, even if Mr. Benjamin was legally powerless to stop him, aren't we picking nits? After all, $3 million dollars is a lot of money.

The distinction matters because the difference between campaign contributions and independent spending has, for more than 30 years, occupied a central position in campaign finance law. The Supreme Court has ruled that the government may regulate direct contributions to candidates, which can create at least the appearance of a quid pro quo exchange. But the Court has consistently rejected regulation of independent expenditures, recognizing that if the government can regulate any spending that might influence an election or make a candidate grateful, it can effectively regulate all political speech. . . .

But suppose the Court holds that Justice Benjamin had a constitutional obligation of recusal. What would the standard be, exactly? $50,000? $1,000? $100? Should a judge be expected to scan all campaign-finance filings in an election cycle — especially when some types of independent speech do not have to be reported?

Short of abolishing judicial elections — which many "reform" groups would like to do — there is no credible way to craft a workable recusal standard based on independent speech.

loki13 (mail):
Ah... the parade of horribles.

There are many problems with the op-ed.

1. There is the conflation of "political" (legislative &executive) elections with "judicial" elections. These are separate areas of inquiry, and require separate analyses.

2. There may be problem with judicial elections in general, or, perhaps not. That is beyond the scope of their discussion. But they are mingling two things- one of which is the idea political donations as speech, and the other is the outright corruption in the judiciary. That the boundaries in the middle are tough is not in doubt; that there is a difference (and this lies at one extreme) is also, I believe, not in doubt.

Here's my op-ed:
Hey- how can we call something an "ocean". It's just water, right? How do we know if the water in my glass is an ocean? How about in my pool? How about a single molecule of H20? Well, water is just water, see! And it's hard to tell when, you know, it's big and stuff. So there aren't oceans.
3.5.2009 4:24pm
David Larsomn (mail):

I hope you're not drinking too much salt-water....I'm pretty sure your glass of water is not an ocean. :-)
3.5.2009 4:30pm
ruuffles (mail) (www):

Smith and Patch suggest that Caperton is best understood as a case about political speech in the context of judicial elections.

The only possible order the court could give is whether and when a judge should recuse. Thus, they would not impose any (further) bar on campaign speech or spending. Mr. Massey can spend billions buying all seven seats on the WV court and no one could stop him. But what the SC is deciding now is whether those seven (or one) judges can fairly decide his case. The judges would (obviously) not need to recuse in other cases.
3.5.2009 4:34pm
I'd agree with abolishing judicial elections for state judges, and giving them long terms or life tenure like federal judges have. Judges simply serve a different function than representatives, senators, governors, or presidents.

Most of the time I hear of problems with biased judges it's from plaintiffs attorneys campaigning on behalf of a judge in a particular county. After said judge is elected, he or she adopts a flexible notion of personal jurisdiction and venue and drags corporations before the court to issue favor rulings for the plaintiffs' attorneys, resulting in sizable contingent fees. It'll be interesting to see what effect if any the decision in Caperton has on that practice.
3.5.2009 4:53pm
Seems to me that this op-ed mashes together two completely independent issues.

1. There is the problem of a workable line. This was the problem the Supreme Court directly confronted at oral argument. If $3 million is too much, how about $1 million, or $1000, or $1? But this has nothing whatsoever to do with whether the expenditure is a direct donation to the candidate or independent.

2. There is the separate issue that the expenditures here are independent. So a litigant can essentially force a judge to recuse himself from a case by spending money to get that judge elected. But this hardly seems problematic. If you are a litigant contributing money to a judge, there are two possible reasons. (1) You want to contribute to a good and fair judiciary; or (2) you want to contribute to a judiciary biased in your favor. (1) is good and (2) is not. The best way to see if the motivation is (1) or (2) is to make the judge recuse himself. Now, a flat rule might create the perverse incentive of spending money on a hostile judge to trigger recusal. But that is why the Justices were debating a "game the system" exception.

The speech we want to protect is speech contributing to a good judiciary generally; not speech of "please rule for my particular case". Recusal furthers, not diminishes, the good speech.
3.5.2009 5:05pm
David Schwartz (mail):
tvk: I don't think it's possible to construct a workable "game the system" exception.
3.5.2009 5:42pm
PatHMV (mail) (www):
I think ruufles has it correct. We often recuse judges because they are friends or married relations of a party or a party's lawyer. That doesn't interfere with anybody's right to marry or right of free association. The law can't say "the judge may not be friends with anybody," but it can say that the judge cannot preside over cases involving his friends. Similarly here, the law cannot say "litigants can't spend large sums influencing judicial elections," but it can require the recusal of the judge thus aided, from cases involving THAT litigant.
3.5.2009 5:48pm
PatHMV (mail) (www):
I would note that due process and the right to unbiased judges is every bit as fundamental a right as the right to free speech (and I'm pretty much an absolutist when it comes to free speech).
3.5.2009 5:52pm
I proposed elsewhere that we should invite Israelis to populate the Southwest (Arizona, New Mexico, West Texas) in pursuit of a win-win development with respect to the Middle East.

I was wrong.

We should invite the Israelis to populate West Virginia instead. Better land. Better location. Burning need for educated, smart, entrepreneurial citizens. And recent news from the Wild and Wonderful state -- indicating corruption in every major institution in that state, from West Virginia University and the Governor's office (and family) to Mylan Laboratories and the state Supreme Court -- suggests that any change in West Virginia would be a substantial improvement. The corruption involves both parties -- the Mylan scandal was Democratic, the Supreme Court shame is Republican. West Virginia is a trainwreck from nearly every perspective (education, income, industry, government, health care, integrity).

West Virginia won't have Sen. Byrd to compensate for its economic inadequacies forever. So, I say, change the name (West Israelia?), start the charter flights and improve the lot of West Virginians and Israelis overnight!
3.5.2009 7:05pm
By the way, as a First Amendment scholar, Professor Smith is probably a heck of an election law specialist.
3.5.2009 7:10pm
The first Amendment guarantees the right to spend money to support officials politically. But it doesn't guarantee a right to have the particular officials one has supported be the ones who judge ones cause.

Justice Benjamin should have recused himself. I don't think a justice who doesn't recuse in these circumstances could be considered impartial. I suspect that this level of campaign support may give rise to a Process violation. Whether it does or doesn't, however, the First Amendment has nothing to do with it. Nothing is preventing Mr. Blankenship from spending as much on judicial campaigns as he wants; having neutral judges decide his cases creates no legal impediment to his advocating or spending all he wants.

The First Amendment only guarantees the right to advocate. It contains no promise that there will be people available to listen.
3.5.2009 8:50pm
Glen Alexander (mail):
It appears that much of the commentary on this case hinges on the premise that Blankenship "bought" a judge by spending $3M to promote that judge's (Benjamin) election.

Isn't a more accurate description of the facts that Blankenship spent $3M to defeat an incumbent judge (McGraw)?

Both of these views maintain the same understanding that all of Blankenship's $3M was spent in uncoordinated independent political speech, and not in campaign contributions to any candidate.

This seems to me to be very much a distinction with a difference.
3.5.2009 10:03pm
NickM (mail) (www):
California has an elected tax board, called the Board of Equalization (the state controller and 4 members, each of whom is elected from a district, make up the board). A member of the Board is prohibited under state law from ruling on a case involving a party who has contributed $250 or more to that member's campaign. [The Board performs the quasi-judicial function of deciding tax assessment appeals.) In practice, the system is horribly gamed by entities who expect to have repeated matters before the Board.

3.5.2009 10:23pm
Caperton's attorney received photos of Blankenship and Justice Elliott "Spike" Maynard, the one with whom he was rumored to be friendly, at a dinner on vacation on the French Riviera. And Justice Larry Starcher was quoted in the New York Times saying Blankenship's bankrolling of Benjamin's campaign made him want to "puke." (Washington Post, 3/2/09)
Why were Maynard and Starcher replaced by two circuit court judges when the case was reheard, while Benjamin remained on the panel? Were Maynard and Starcher actually forced out (how?), or did they willingly step aside? How was it that Caperton got a re-hearing, though it didn't bring him a different result? Maynard's rumored friendship with Blankenship, with the photo of them together "at a dinner on vacation on the French Riviera," clearly disqualified him from hearing this and any other case involving Blankenship, but Blankenship's $3M to elect Benjamin (for all intents and purposes the same as defeat McGraw) wasn't similarly disqualifying? (BTW, anybody look into who paid for Maynard's vacation on the French Riviera?)

I'm glad that Blankenship did not contribute $300, $3K, $30K, or $300K, but rather $3M to defeat McGraw and elect Benjamin. If $3M isn't enough to do the trick (how much does that come to per WV voter?) for purposes of this recusal question, then clearly the amount is immaterial, and no matter how great it may be will be of not consequence. IMO, this stinks and the Supremes better not countenance it, however they get to the result. (Those who think otherwise would be willing to have their case decided by a judge whose seat on the bench had been paid for by the opposing party? And Scalia's suggestion that it wasn't much different than his own debt of gratitude for appointing him to the Supreme Court is very unpersuasive for a number of reasons.)

$3M seems like an incredible amount to spend to elect a state supreme court judge, though it seems Blankenship got good value for it. (I assume this case was going to the WV Supreme Court when Blankenship laid out that $3M, which strikes me as something like placing one's bet in roulette after the croupier has spun the wheel and it is about to come to a stop, or getting a bet down on a horse race after the horses have broken from the gate. And, I'm with Starcher that the whole thing is nausea inducing.)

Buying in elections is nothing new in WV, and some believe Joe Kennedy purchased the presidency for his son Jack in WV. JFK joked that his father had said he was willing to lay out the money it would take to buy the election, but he wasn't going to pay for a landslide. (LBJ, of course, did start his political career with a dubious "landslide" in Texas, and was always known thereafter as "Landslide Lyndon.)

(Which state supreme court has the worst modern history of corruption? It seems to me that there was some rather unseemly stuff in NH and in PA, but I don't know whether those where exceptional or representative instances.)
3.6.2009 12:39am
TokyoTom (mail):
Jon, notwithstanding the CCP amicus, Caperton v. Massey is not about free speech, but whether money is allowed to buy judicial decisions - which is clearly what Blankenship and Massey were about, going so far as to scandalously aport about with WVA chief justice Elliott "Spike" Maynard on the French Riviera while Massey had a case pending before the court.

While the Supreme Court might be reluctant to establish an appearance of bias recusal standard for elected judges, CCP clearly mistate the issue, which is not whether "an elected judge must recuse because citizens independently speak out for or against a judicial candidate", but whether support for a campaign (direct or indirect including attack adds against opponents) and direct interests in pending or likely litigation (and Massey is almost continuously in the courts) are of a sufficently high level that concerns about possible bias are easily justified. In this case, not only were Blankenship's expenditures about 60% of all pro-Benjaimin/anti-McGraw contributions, but there was the $60 million judgment in 2002 that Massey was appealing to the Supreme Court at the same time as the election.

Setting out a federal Constitutional standard will not affect free speech at all, but may hopefully serve to loosen expectations that those who loosen their purse strings to speak freely will be able to sway particular judicial outcomes. It's hard to see what ill can come of that, and as an issue of federalism there certainly seems to be room for a federal standard as a floor.

I disagree with Glen that there is any significant difference as to the question of judicial bias in characterizing Blankenship's expenditures as an effort to defeat a judge he doesn't like, as opposed to support for a replacement. In either case, Blankenship is clearly trying to influence judicial behavior, and his firm still has cases before the courts.
3.6.2009 1:48am
TokyoTom (mail):
I'm not sure where I stand on underlying issues about judicial elections, but I note that the Justice at Stake coalition has significant resources on this case.
3.6.2009 1:54am
How about the fact that the esteemed Sandra Day O'Connor has made known that she thinks that the Supremes ought not let the WV travesty stand? Is that likely to affect the outcome, or is it no more consequential what she thinks than what any of us may think? Any previous instances of retired justices letting those still sitting know how they think a case before them should be decided? (Of course, most are carried out feet first or profoundly impaired, e.g., Douglas, aren't they, so not many retirees hanging around to offer unsolicited opinions, are there?) Not in any way improper for her to make known her thinking, is it?
3.6.2009 2:33am
BTW, anyone knowledgeable about doings in WV who can tell us whether Blankenship just buys judgeships or if he buys other elected offices too? Does he always win in court?
3.6.2009 2:35am

BTW, anyone knowledgeable about doings in WV who can tell us whether Blankenship just buys judgeships or if he buys other elected offices too? Does he always win in court?

I can't remember if it's in the parties briefs or one of the amici (probably both), but the assertion is made that the company loses its fair share in the Supreme Court. If I remember right, it's reported to actually have lost more in front of Justice Bejamin than it won, including a case shortly after Caperton that involved substantially more money.
3.6.2009 9:40am

By the way, as a First Amendment scholar, Professor Smith is probably a heck of an election law specialist.

I took Professor Smith's election law seminar in one of my final semesters in law school. He was the rare (in my experience) professor who could spend an entire semester espousing views diametrically opposed to mine, but still do so in a way that wasn't preachy and actually made me feel like I was learning something. That's a pretty tall order.
3.6.2009 9:43am
Brad Smith (mail) (www):
Jonathan has necessarily placed only edited quotes from our WSJ piece above, and it doesn't seem to me that many of the commenters have read the entire piece, let alone the Center for Competitive Politics brief in the case.

There continues to be an easy slip into deciding that this case clearly involves corruption, in part because so much reporting on the facts has been incomplete or inaccurate. As Massey's attorney Andrew Fry told the Court:

Justice Benjamin is being asked to recuse on the basis of activities of a third party over which he had no control, in a case whose disposition offers him no current or future personal benefit, and where he has no personal connection with the parties or their counsel, has expressed no opinion about any of them. He has done nothing that would call into question his objectivity, his impartiality.

Did Blankenship "buy a judge," as so many are quick to assert? Benjamin won election by a reasonably comfortable 7 percentage points. He was endorsed by every daily newspaper in the state except one. Leaving out anything spent by Blankenship, Benjamin raised $850,000 for his own campaign and another $1 million or so was spent by independent groups against his opponent or in Benjamin's favor. Benjamin and Blankenship never communicated or met. Constitutionally requiring recusal on such a basis (remember, recusal is traditionally left to the individual judge to decide) would be a dramatic break from long-standing law, and leaves no real standard by which to judge when recusal must take place.

The lack of any workable due process standard is significant indeed. For example, if possible gratitude is enough to mandate recusal, what about possible anger and desire for vengeance? Had he won, would not Benjamin's opponent, former Justice McGraw, also have to recuse due to a probability of bias against Massey coal? Does it matter that Caperton gave $10,000 to groups supporting McGraw? $10,000 is a lot less than $3 million, but it's not chicken feed - where is the cut off? Does it matter than Benjamin has ruled against Massey on at least five other occasions since joining the West Virginia Court? That Blankenship is not personally a party to the case? What other groups or interests can demand Benjamin's recusal? In a libel case, could the plaintiff demand Benjamin's recusal because the newspaper in question endorsed Benjamin? Union backed groups spent over $1million trying to defeat Benjamin. Must he recuse there, under the vengeance principle? (Or the idea that he might rule for them so they won't attack him next time?)

These are questions of due process, and the workability of finding a constitutional mandate to recuse in a case where the judge himself, as Mr. Fry pointed out, has never done a thing to make people question his impartiality.

While the case is fundamentally about due process, it is linked inextricably to the question of the extent to which the corruption of public officials can be assumed on the basis of political activity by others, which is why so many of the organizations that have promoted restrictions on political speech for so long have jumped on the Caperton bandwagon. These opponents of free speech see the Caperton case much as we at the Center for Competitive Politics do - as the thin edge of the wedge that will open the door to full scale regulation of political speech.

It may be that we should not elect judges, but if we do, judges ought to campaign, and citizens ought to campaign and participate. If the Court decides that large independent expenditures are sufficient to create an appearance of bias in the judiciary, there is no reason not to believe that they do not create a similar concern of corruption of judgement in the legislature, and thus should be subject to regulation. To avoid this result, the Court would have to find that legislative races are somehow different than judicial races. In fact, the Court has held on several occasions (see e.g. Minnesota Republican Party v. White) that they are not. The question is not whether judging is different than legislating - it is whether campaign contributions affect judges differently than legislators, the Court having already conceded that the government can regulate campaign contributions (as opposed to independent expenditures) because of the higher risk of dealmaking involving direct contributions.

Of course, some of the commentators above may want to more heavily regulate political speech, and I have written much on that. Others may simply reach a different conclusion on the balancing of interests. But those who care about free speech should not too lightly dismiss what is at stake, and no one should rush to judgment based on the superficial and usually misleading press recitations of the "facts" of Caperton v. Massey.

The facts of Caperton, on examination, are not so damning as many presume. But that aside, how big a problem is this. Remember that Benjamin could have recused. Note that his failure to do so may well cost him in his reelection effort - he has been sharply criticized for not recusing. Which is more damaging: the decision of Justice Benjamin, who again has personally done nothing to put his impartiality on the line; or the idea of creating a new constitutional right to force a judge to recuse, one created with no identifiable standards as to when it applies, and one based on an assumption about the effects of political speech on officeholders that, if accepted, and in light of past decisions of the Court, could open the door to vastly more regulation of poltical speech?
3.6.2009 10:49am
After the whistleblower-arranged illumination of the relationship between Mr. Blankenship and another Justice cast harsh new light on a similar situation, it is surprising to encounter any unqualified assertion that "Benjamin and Blankenship never communicated or met." Even if the assertion is based on a first-hand report, the assertion seems unreliable. It required disclosure of inculpatory photographs to help Justice Maynard to find his pen (for signing recusal documentation). Justice Maynard said he 'happened to run into' Blankenship in Monaco, which happenstance precipitated three days of dining and drinking with female companions. Mr. Blankenship later was quoted as allowing that 'I'm not sure you could say it was totally a coincidence.' The context suggests that neither Mr. Blankenship nor a West Virginia Supreme Court justice is a reliable source on which to base such an assertion of innocence or harmlessness.
3.6.2009 11:55am
TruePath (mail) (www):
A bright line rule requiring recusal as a result of unsolicited independent contributions in excess of some amount would be awful. Such a rule would let rich litigants to buy a veto to judges they fear would rule against them.

If you litigate frequently or expect a big case to come up and don't like the way judge X rules just make sure you donate enough to his election campaign.

Moreover, if you want to extend that rule to this case things get even more complicated. At least from what I remember Mr. Blankenship is merely the majority shareholder in the company involved in the lawsuit (and if I'm wrong and he is a sole proprietor surely owning 90% rather than 100% shouldn't make a difference) . Thus any rule that requires recusal in this situation would need to specify whose donations trigger the provision.

I mean do only majority shareholders expenditures trigger recusal? That seems weird. Owning 40% of a huge company facing a huge lawsuit might put more of my money at risk than owning 90% of a small company facing a small lawsuit. Also this would allow dirty tricks by funneling spending through the minority shareholders. On the other hand if you attach the requirement to any significant shareholder it might start to get hard to find a judge to handle cases against companies like google in some jurisdictions.


Ultimately, I'm convinced that no bright line rule about recusal is workable. However, a better approach might be to let the appeals court use it's judgment as to when there is an appearance of impropriety and overturn decisions where judges failed to recuse themselves on a case by case basis.

Still, even this presents a danger of allowing people to game the system by encouraging a judge to recuse themselves with donations.
3.6.2009 1:18pm
TokyoTom (mail):
neurodoc, the record appears to indicate that Massey doesn`t always win against other big coal firms or their customers, but that the big boys are all pretty effective in getting the courts to rule against smaller litigants.

The 2004 election was pretty nasty and close, and Benjamin`s victory came against a background of general Republican success. In the 2006 midterms, as a result not only of the backlash against Republicans and Blankenship`s contributions to replace McGraw with Benjamin, Blankenship`s more ambitious effort to more strongly control the WVA legislature (he spent millions on trying to oust 50 or so Democratic legislators), but failed miserably (only one targeted Dem lost).
3.7.2009 12:09am

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