Sustained Outrage

Campaign spending: open for business?

39197024.jpgLast month, at the first public meeting of the Independent Commission on Judicial Reform, several speakers from North Carolina extolled the virtues of the Tarheel State’s public financing option, in place since the 2004 election. Public financing, they said, helps insulate judicial candidates from the appearance of undue influence from campaign donors.

(A quick aside: Judges are in a tricky spot when it comes to campaign fund raising. They cannot personally solicit campaign donations, and most will tell you that they never look at the list of contributors that their campaign treasurers submit to the Secretary of State. In practical terms, however, this doesn’t mean that they don’t know who gives them money. They get a pretty good idea of who is supporting them, including lawyers, when they go to their own fundraising events. And in case it has escaped notice, many lawyers will take the first chance they get to remind judges that they gave money to their campaign. But, as a recent advisory opinion from the Judicial Investigation Commission reiterated in March, the existence of a campaign donation from a lawyer to a judge does not by itself require a judge to step down from any case involving that lawyer. The most any individual can give is $1,000, both in the primary and the general election.)

But back to campaign spending. Other speakers at the forum, including campaign law expert Kenneth A. Gross, warned the commissioners that public financing won’t touch independent expenditures. In fact, the trend has been for courts to ease restrictions on campaign spending, he said.

He and others are monitoring how the U.S. Supreme Court handles the Citizens United v. Federal Elections Commission case. In a rather extraordinary move, the justices asked for a rehearing of a case, and scheduled it for yesterday, during their summer recess. At issue in this case is whether the U.S. Supreme Court will overturn a ban on corporate spending in elections that has been in place since 1907.

You can listen to the entire argument, which lasted more than 90 minutes, here, or read a transcript here. Lyle Denniston of SCOTUSblog has posted his analysis here.

Given West Virginia’s recent history with, er, outsize campaign spending, the Supreme Court’s ruling could have significant implications.

Brian Skinner, staff counsel for the House of Delegates’ judiciary committee, wrote in a summary of recent West Virginia campaign finance legislation that was presented to the Independent Commission in August, that the Legislature has tried repeatedly to bring state electioneering and campaign finance laws in line with the high court’s latest holdings. Skinner wrote:

Changes in 2008 were an attempt by the Legislature to address constitutional issues with the State’s campaign finance laws highlighted by litigation pending in federal court. Those changes were intended to conform West Virginia law to a series of U.S. Supreme Court cases defining the rights of corporations to engage in certain political speech. Additionally, the Legislature attempted to support the extension of disclosure laws directed at “electioneering communications” to non-broadcast media.

Depending on what the Justices decide, our legislators may have their work cut out for them.