As Rick posted earlier this week, NY has proposed a rule requiring disqualification “where an attorney or party has contributed $2500 or more individually (or $3500 or more collectively, by multiple plaintiffs or defendants, or by an attorney and his or her law firm) to the assigned judge or justice’s campaign for elective office within two years prior to such assignment.” 

The proposal’s being put forward is a splendid step in implementing Caperton (which so far has led to almost no motions at all and none, repeat none of the dissenters’ horribles).  NY is especially to be commended, given how few state judiciaries have done anything since Caperton’s decision almost two years ago. 

The proposal is, blessedly, open to public comment.  Won’t the proposal, in its current form, be both a failure because it doesn’t cover independent spending, also perhaps worse than a failure because it will encourage independent spending (I’m hawkish in supporting the constitutional right, but usually unhappy with unaccountable “loose cannons”)?

Also, any rule that specifies a trigger amount raises the possibility of being challenged as undue interference with political participation.  While the NY Law Journal  (2/15) found that the $2500 figure is rarely exceeded in a “spot check” covering the last two years (except in contests for Surrogate), what of the $3500 aggregate figure? 

Georgia has a fine pending proposal, using a multi-factor rather than trigger-level approach.  That too has been open to public comment although, oddly, comments are not available to the public.

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