[EL] Breaking News: Summary Reversal in Montana

[Daniel Abramson]

Caperton held:  "We conclude that there is a serious risk of actual
bias--based on objective and reasonable perceptions--when a person with a
personal stake in a particular case had a significant and disproportionate
influence in placing the judge on the case by raising funds or directing
the judge's election campaign when the case was pending or imminent. The
inquiry centers on the contribution's relative size in comparison to the
total amount of money contributed to the campaign, the total amount spent
in the election, and the apparent effect such contribution had on the
outcome of the election."

It should be noted that the Court appears to erroneously refer to
independent expenditures as "contributions."

I understand, of course, that Caperton involved a recusal of a judge, and
that it was not about quid pro quo corruption.  However, that is exactly
the point.  CU, while making this distinction, failed to explain why the
distinction should exist.  Why was CU limited to an analysis of whether
independent expenditures result in quid pro quo corruption?  In Caperton,
the Court found that IEs can create "a serious risk of actual bias."  How
is this different than the longstanding rule allow campaign finance laws
that limit "corruption or the appearance of corruption"?  It seems
impossible to square the notion that independent expenditures create
"actual bias" in the context of a judicial election with the statement that
"independent expenditures are never corrupting as a matter of law."

Perhaps such corruption was not conclusively proved in CU, or perhaps the
remedy was overbroad.  But I don't see how one can argue that independent
expenditures are never corrupting without also arguing that Caperton is
incorrect.

Daniel



On Mon, Jun 25, 2012 at 1:23 PM, <JBoppjr at aol.com> wrote:

> **
> *Caperton* involves recusal of a judge based on bias against parties.  It
> has nothing to do with quid-pro-quo corruption in *CU*.  Further, *CU*rejected this argument on that grounds.  JIm
>
>  In a message dated 6/25/2012 1:19:53 P.M. Eastern Daylight Time,
> danielkabramson at gmail.com writes:
>
> Jim,
>
> The problem with the statement that "independent expenditures are never
> corrupting as a matter of law" is that it ignores Caperton.  Rather than
> issue a per curiam decision, it would be more helpful if the Court
> explained why the facts alleged by the State of Montana are more similar to
> the facts in Citizens United than the facts in Caperton.  Without that
> analysis, we are left guessing.
>
> Though I think we can assume that judicial elections are somehow
> "different" and therefore subject to a different analysis, there Court has
> never adequately explained why this should be true.
>
> Daniel
>
>
> On Mon, Jun 25, 2012 at 7:33 AM, <JBoppjr at aol.com> wrote:
>
>> **
>>     The per curiam decision says that "Montana's arguments in support of
>> the judgment below either were already rejected in *Citizens United* or
>> failed to meaningfully distinguish that case."  This closes the door on the
>> argument that unique facts in a certain state can be employed to overturn
>> *CU*.  Further, it means that independent expenditures are never
>> corrupting as a matter of law.
>>
>>     Justice Breyer says that there is no prospect that the majority of
>> the Court will reconsider *CU*.
>>
>>     This is an excellent result.  Jim Bopp
>>
>>  In a message dated 6/25/2012 10:10:43 A.M. Eastern Daylight Time,
>> tokaji.1 at osu.edu writes:
>>
>>  5-4 according to SCOTUS blog<http://electionlawblog.org/wp-admin/www.scotusblog.com>,
>> which is live-blogging <http://scotusblog.wpengine.com/>.  Justice
>> Breyer wrote the dissent.****
>>
>> ****
>>
>> Daniel Tokaji ****
>>
>> Robert M. Duncan/Jones Day Designated Professor of Law****
>>
>> The Ohio State University | Moritz College of Law****
>>
>> 55 W. 12th Ave. | Columbus, OH 43210****
>>
>> 614.292.6566 | tokaji.1 at osu.edu****
>>
>> ****
>>
>>
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