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Citizens United and Judicial Elections [updated]

By Don Cruse

Most commentary about today’s Citizens United decision will focus on congressional and presidential elections.

But the decision may hit closer to home. Professor Rick Hasen brings some attention to the effect that Citizens United may have on judicial elections, especially in light of Caperton v. A.T. Massey Coal:

The ways out of this box are not easy to see. Corporate spending limits are effectively off the table. Disclosure alone is unlikely to get enough attention, particularly for a public that pays scant attention to judicial races. Recusal motions against particular judges are going to be hard to win.

The most direct way “out of this box” might be for individual judges to be more concrete (and public) about their recusal policies. That’s not an institutional answer, but it is one completely within the control of the judicial branch. A recusal policy that is easy for voters to understand would also be easy for voters to police.

Update: There is a related post over at First One @ One First, which has some extended quotations from the Citizens United dissent. That blog promises coverage of a panel discussion on this question next Tuesday at Georgetown Law including (among other luminaries) former Chief Justice Tom Phillips.

Full post as published by Supreme Court of Texas Blog on January 21, 2010 (boomark / email).