Order in the Court: Full Public Financing of Judicial Elections

This week’s US Supreme Court ruling that a West Virginia Supreme Court judge who received a huge political campaign contribution (or “investment” depending on your viewpoint) from Massey coal corporation should have recused himself from a case involving that corporation is raising serious questions within Ohio legal...and media... circles. Ohio is one of 39 states that elect some or all judges.

Will all elected judges now have to recuse themselves from all cases involving big campaign donors?

What if a big campaign donor/investor is only a minor party in a legal case?

Is there a contribution/investment threshold amount above which judges must recuse themselves?

Is it time to ditch direct election of judges altogether in favor of appointment by the Governor based on a merit selection system?

Glaringly absent from reports of this story containing comments from Ohio Chief Justice Thomas Moyer and political science and constitutional law professors is one solution that addresses many problem of private money in public elections: full public financing.

Maine, Arizona and other states provide candidates who agree not to accept any private money from any source (business corporations, labor unions, themselves) a fixed amount of public funds. Unfortunately because of the 1976 US Supreme Court Buckley vs Valeo nonsensical decision equating money with free speech, forcing candidates to accept public funds or imposing campaign spending limits is illegal. Also, because of several US Supreme Court decisions anointing business corporations as “persons,” it is illegal to prevent corporations from exercising their free speech “rights” by shelling out corporate cash to candidates, ballot campaigns, political parties, and third party issue front groups.

Nevertheless, a candidate who voluntarily accepts “Clean Money” in a full public finance system can in the course of his/her campaign point out how they are, in fact, beholden to their funders (the public) rather than to the funders of candidates who receive corporate donations.

A full public financing system serves, therefore, to both educate constituents on the insidious “pay to play” funding system of privately funded elections as well as provides a real choice for candidates and voters. Candidates who opt for public funding can spend the bulk of their campaign talking to voters rather than having to spent an inordinate amount of time dialing for dollars. Once elected, publicly funded candidates can freely work to reward their funders (i.e. the public) by acting for the common good. In the case of judges, that means making decisions on the merits of cases without having to worry about whether and how much plaintiffs or defendants may have contributed/invested in their political campaigns.

Voluntary public financing is by itself not enough to break the powerful link between corporations and candidates. We must also reverse the Buckley and corporate personhood Supreme Court decisions. Money is not speech. It’s property. Corporations are not people. They’re creations of and subordinate to the state and public.

Voluntary public financing, however, is a stepping stone to more democratic elections.