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.