Bench Memos

Re: Judical Elections Campaign Spending: NYT vs. Empirical Evidence

The New York Times last week denounced the West Virginia supreme court’s decision to deny Allen Loughry, a candidate for their court, supplemental public campaign financing; the financing would have violated the political speech rights of his opponent, Justice Davis. As my colleague Carrie wrote on Tuesday, Mr. Loughry triggered eligibility after his opponent’s campaign expenditures crossed a certain threshold. He was to receive $1 for every additional dollar spent by his opponent beyond his initial public-financing disbursement level. 

Despite clear U.S. Supreme Court doctrine indicating that a public-financing system like this would violate Justice Davis’s political speech rights — essentially nullifying her campaign expenditures — the Times called for the West Virginia supreme court to manufacture an exception to clear precedent. They thought that judicial contests should “raise special concerns for preserving the appearance and reality of fair decision-making by elected judges.”

There is legitimate debate about the best design for campaign-finance laws. But Friday’s decision was about something more important than that — constitutional protections for free speech.  

The Times tries to discredit the West Virginia’s ruling by making it sound like the decision will make it near-impossible to preserve judicial integrity. However, as the West Virginia supreme court explained, three of the four candidates opted out of public financing, in favor of raising private donations. This vitiates public financing’s supposed benefits — the perception of money’s influence over the judiciary, if it exists, will continue. What’s left is a much less persuasive justification for limiting free speech — leveling the playing field for judicial candidates. Instead of asking why the West Virginia supreme court undermined “the appearance and reality of fair decision-making by elected judges,” shouldn’t we ask why the New York Times wants to suppress free speech, by giving money to some — but not all — judicial candidates? As West Virginia’s decision rightly explained, quoting Justice Roberts in Arizona Free Enterprise Club’s Freedom Pac v. Bennett

“Leveling the playing field” can sound like a good thing. But in a democracy, campaigning for office is not a game. It is a critically important form of speech. The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom — the “unfettered interchange of ideas” — not whatever the State may view as fair.

While the New York Times continues to decry, despite the empirical evidence, money’s pernicious impact on judicial integrity, it still supports the Missouri Plan, which masks the oversized influence of another special-interest group — trial lawyers. If the New York Times is concerned about unduly influencing the judiciary, why let special-interest groups in through the backdoor? I’m as concerned about maintaining judicial integrity as anyone — a fair judiciary is essential to sustaining our governing system. But, I’d trust the New York Times’ intentions more if they supported a state judicial-selection system more akin to the federal model of appointment — as Tennessee has moved closer to enacting. We might even then find something closer to common ground. Instead, we’re left with misguided — at best — attempts to undermine judicial elections, without the empirical evidence to back it up.  


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