Fair Courts Litigation Task Force

Public Financing of Judicial Elections

In some respects, the issues regarding public financing of judicial elections mirror those in public financing of non-judicial elections.  But unlike in challenges to non-judicial election regulations, where preventing political corruption often rests alone in the balance against plaintiffs' First Amendment rights, in the judicial context, the First Amendment rights of those challenging election rules are also counterbalanced by the fundamental constitutional due process rights of litigants to a fair trial before a tribunal that is impartial in both fact and appearance.  That interest is threatened when a judicial candidate receives significant campaign support from individuals or corporations with interests in pending or future litigation.  Recent judicial public funding litigation has centered on the constitutionality of matching fund public financing programs.

In North Carolina Right To Life Committee Fund For Independent Political Expenditures v. Leake, 524 F.3d 427 (4th Cir. 2008), the Fourth Circuit upheld North Carolina's judicial public financing law that included a provision that provided additional public funds to a candidate based on the spending of privately financed candidates and independent groups.  The court recognized that the provision served the state's important interest in operating judicial elections while avoiding corruption and the appearance thereof.

In Wisconsin Right to Life PAC v. Brennan, No. 3:09-cv-00764, Document 110 (W.D. Wis. March 31, 2011), a federal district court affirmed the constitutionality of Wisconsin's matching funds program.  The judge emphasized that the law covered only elections for seats to Wisconsin's highest court, and explained that the state's "interest in safeguarding even an appearance of bias is stronger than any of the public financing statutes considered by courts to date."  This is because, unlike the "political" branches of government, judges are not representative officials, but rather must "be, and appear to be, impartial and independent in applying the rule of law."  More information on the case is available at the Brennan Center and Justice at Stake websites.  Both groups, along with task force member Campaign Legal Center, submitted amicus briefs on appeal before the 7th Circuit.  The appeal was subsequently dismissed as moot after Wisconsin repealed the provision at issue.

Subsequently in 2011, the Supreme Court decided Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, 131 S. Ct. 2806.  In a 5-4 decision, the Court struck down an Arizona public financing statute featuring a matching funds provision similar to those in North Carolina and Wisconsin, although the Arizona statute applied to executive and legislative elections only.  The Court's majority concluded that these "trigger" funds substantially burdened free speech, that the state lacked any compelling interest in equalizing election funding, and that the state's interest in fighting corruption did not justify the burden on free speech.  The Court did not address judicial elections, nor indicate whether the same analysis would apply in assessing the constitutionality of matching fund systems for judicial candidates.  In this action, the Brennan Center represented defendant-intervenor Clean Elections Institute, and Justice at Stake submitted an an amicus brief on behalf of 13 former state supreme court justices.  More information regarding this case is available at the Brennan Center and Justice at Stake sites.

In American Tradition Partnership, Inc. v. Bullock (2012), the Supreme Court voted 5-4 to strike down a Montana law that banned indirect corporate expenditures on all state elections, including judicial elections. The decision summarily reversed a Montana Supreme Court ruling.  In this case, the Brennan Center submitted an amicus brief along with constitutional and election law professors, and Justice at Stake joined eight retired Montana Supreme Court justices in filing an amicus brief arguing that the Montana law was constitutional.  More information regarding this case is available at the Brennan Center site.

In Loughry v. Tennant et al., the West Virginia Supreme Court recognized that judicial elections are different from executive and legislative elections, and concluded that there are unique and compelling state interests in "protecting the impartiality and integrity of the judiciary, and strengthening public confidence in the judiciary."  However, the Court found that the state's matching funds provision was not narrowly tailored to further this interest, and was constitutionally impermissible in light of Arizona Free Enterprise Club v. Bennett.  The Brennan Center represented current Justice Loughry in the parallel state and federal proceedings.

In North Carolina Right to Life Political Action Committee v. Leake, No. 5:11-cv-472-FL, the federal district court for the Eastern District of North Carolina similarly struck down North Carolina's judicial election matching funds provision, finding that the Supreme Court's decision in Arizona Free Enterprise Club v. Bennett controlled the case.  Notably, in this litigation, the state did not argue that the statute furthered a compelling state interest, only that the issue was moot because the state did not intend to disburse any matching funds.


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