A divided Supreme Court last Thursday swept away decades of legislative efforts to restrict the role of corporations in election campaigns, ruling that severe restrictions on corporate spending are inconsistent with the First Amendment’s protection of political speech. The court split 5-4 over the ruling, with its conservative members in the majority.
The decision ignores the court’s precedent that corporations may not use their profits to support or oppose candidates, and it rejects a large portion of the so-called McCain-Feingold campaign finance reform act that the justices had declared constitutional just six years ago. It appears that the rule will apply to the political role of labor unions as well.
The decision does not address the restriction on direct contributions to candidates, and it upholds disclosure requirements for groups that mount advertising campaigns for and against candidates.
Justice O’Connor criticized the recent decision, Citizens United v. Federal Election Commission, only obliquely, reminding the audience that she had been among the authors of McConnell v. Federal Election Commission, the 2003 decision that was overruled in large part on Thursday. She predicted that “mutually-assured destruction is the most likely outcome.”
She has become increasingly vocal in recent years about doing away with judicial elections. Most states elect at least some of their judges, contrasted to federal judges who are appointed. The American Bar Association has also actively opposed elections of judges. On July 30th at the 2009 ABA Annual Meeting, the Standing Committee on Judicial Independence held a Presidential Showcase program, Justice for Sale? Contributions to Judicial Elections in the Wake of the Supreme Court’s Decision in Caperton v. Massey. In Caperton, for which the ABA filed an amicus curie brief, the U.S. Supreme Court ruled that the Constitution required the recusal of the West Virginia Supreme Court justice who was elected with the help of more than $3 million in contributions from a coal mining executive.
In Colorado, state judges are appointed, not elected. Under Colorado’s original constitution, judges were elected by the people, but in 1966, voters approved a constitutional initiative calling for merit selection of judges. Under Colorado’s merit selection system, judges are appointed by the governor from a list of nominees submitted by a judicial nominating commission, and judges stand for retention at least two years after their appointment. In 1988, the Colorado general assembly created judicial performance commissions throughout the state to provide voters with information about the performance of judicial retention candidates.