Judge Wars and Free Speech

Wednesday, August 10, 2005

Judge Wars and Free Speech

As I've mentioned here from time to time, the judge wars have become even fiercer and dirtier in some states than they have on the federal level. Although TV ads in states where supreme court judges are elected may scream about hot-button issues like abortion, school funding, and so on, this article accurately points out that the origin of all of the money flowing into judicial races these days is big business's attempt to put pro-"tort reform" judges on the bench. Countered, of course, by trial lawyers' attempt to keep business's candidates off the bench.

The article is mainly about an effort in Alabama to solve the perceived problem with what has traditionally been the main alternative--having judges be appointed rather than elected. If my recollection is correct, however, no state with an elected judiciary has ever switched back to appointment. Maybe it's a catch-22: people who are loopy enough to elect Roy Moore to the supreme court probably aren't going to see any problem with elections in which people run as "the Ten Commandments Judge" or vow to string up every jaywalker that comes into their court.

Another possibility has been tried, with pretty good success at this early stage, in North Carolina: public financing of election campaigns. The way it works is that participating candidates get a fixed sum from a fund created by income tax check-offs, like the presidential system. Also like the presidential system, if candidates accept the public money, they agree not to spend any other funds on the race (which is why both Bush and Kerry opted out last year). But unlike the federal system, North Carolina's includes "rescue funds." If a nonparticipating candidate spends more than the cap that's applied to participating candidates, then the participating candidates get extra public money to make up the difference. And the same thing happens if an outside group--Swift Boat Veterans or MoveOn, for instance [no, I'm not equating them, so calm down]--spends money attacking a participating candidate. Rescue funds are designed to keep the public system viable without violating the Supreme Court's ruling that the government can't put mandatory caps on candidates' spending or on independent expenditures by third parties.

As the presidential system illustrates, "clean money" systems can apply to executive and legislative races. Maine and Arizona both have such systems in place for most or all of their state government elections. The big obstacle to adopting them, of course, is where to get the money; clean money elections are one of those things that most voters think is a good idea when asked, but that no one wants to give up money from other projects to pay for. In Massachusetts, the voters adopted a clean money system by ballot initiative, but they didn't provide for a protected funding source like tax return checkoffs or a surcharge on alcohol and tobacco, for example. They just required the legislature to appropriate money from the general fund. Well, guess what? The legislature just refused to do so, and the system never got off the ground. Some voters and candidates sued, and the Massachusetts Supreme Judicial Court said the legislature was obligated to appropriate the money; but the legislature still did nothing, and the system died aborning. (Note: the next time someone tells you that campaign finance reform is an incumbent protection system, remind them of what happened in Massachusetts. Most incumbents loathe anything that reduces their massive fundraising advantage.)

So, apart from Maine and Arizona, no state has managed to come up with the large amount of money required for public funding of executive and legislative races. But more and more states are thinking of taking the smaller step of introducing public funding for judicial races, reasoning that there are special reasons to separate judges from the business of raising campaign contributions. North Carolina has led the way.

James Bopp is a lawyer who makes his living and his fame challenging campaign finance statutes in court, with a pretty good winning percentage, although his real passion seems to be pro-life and other Christian conservative issues that he also supports through litigation. Now he's set his sights on the North Carolina clean money system, and I hope he's going to fail.

In the kind of campaign finance laws we're more familiar with, the statute limits the amount of money people can contribute to politicians or spend on directly running ads supporting a candidate. The free-speech argument in those cases is pretty straightforward. But the First Amendment burden created by a clean-money system is not nearly so obvious. As the First Circuit said in upholding Maine's system, nonparticipating candidates who complain about the rescue funds seem to think that the right to speak includes the right not to have the other side respond. Which is why, with the exception of the Sixth Circuit, which has a weird and unacknowledged intra-circuit split on the subject, all of the cases around the country challenging rescue funds have failed (so far as I know).

Bopp's argument hasn't succeeded elsewhere, and it shouldn't succeed here. He claims that nonparticipating candidates are "chilled" from speaking because they know that their expenditures in excess of the cap will trigger the release of matching funds to their opponents. But there is no right to outspend the opposition. Say what you want, and spend whatever amount you want to spread your message; the other side will get the same opportunity, and the voters can decide which message they like better.

Isn't that how it's supposed to be?

UPDATE: I was incorrect in saying every case but an outlier in the Sixth Circuit had rejected challenges to rescue funding. I had forgotten about an Eighth Circuit case that struck down rescue funding as applied to expenditures by independent groups. A later Eighth Circuit case upheld rescue funding as applied to expenditures by nonparticipating candidates and, as the First Circuit said when upholding Maine's system, cast serious doubt on whether the first Eighth Circuit case was still good law (a later panel's "overruling" an earlier one is a nifty little (illegitimate) trick that's familiar to anyone who's practiced in the federal courts within the Ninth Circuit).

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