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Judicial Elections and Citizens United

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With record spending expected in the 2012 election cycle, what impact is Citizens United having on electioneering and influencing the electorate?  Two state supreme court judges believe that it is having a deleterious effect on the election of state judges. From the National Law Journal: “Speaking at an August 13[, 2012] panel on corporate spending in judicial
elections, Montana Supreme Court Justice James Nelson and former
Mississippi Supreme Court Justice Oliver Diaz Jr. warned that the growth
of corporate interest spending is hurting public confidence in the
courts, scaring lawyers away from seeking judgeships and raising the
specter of corruption”

In an article I wrote for the Iowa Law Review called “Procuring Justice: Citizens United, Caperton and Partisan Judicial Elections,” I detailed recent empirical evidence that judges elected in partisan judicial elections are significantly more likely to favor employers in employer/employee disputes than are appointed judges, or judges elected in non-partisan campaigns. In that article I asked the question:  “Will judges who are elected in a partisan manner, where corporations can now more directly influence the result of judicial elections by contributing large cash electioneering outflows, manufacture outcomes that are biased toward those contributing corporations?”

My article answers:  “The early returns are not good.  That is to say, contemporary empirical evidence suggests that the answer to the inquiry posed above is “yes.” Apparently partisan elected judges are unable to sit neutrally when large corporate expenditure ushered them to the bench. Or stated differently, when corporations are able to manipulate the judicial election process through significant cash disbursement, a judge that is unfriendly, if not hostile, to employee rights will be the likely result.  The Supreme Court’s decision[] in Citizens United . . . stand[s] poised to exacerbate this disheartening empirical implication.”

Others share this concern.  In an Op-Ed for the Washington Post, E.J. Dionne, Jr. wrote the following about Citizens United:

“If ever a court majority legislated from the bench (with Bush’s own
appointees leading the way), it was the bunch that voted for Citizens United.
Did a single justice in the majority even imagine a world of super PACs
and phony corporations set up for the sole purpose of disguising a
donor’s identity? Did they think that a presidential candidacy might be
kept alive largely through the generosity of a Las Vegas gambling magnate with important financial interests in China? Did they consider that the
democratizing gains made in the last presidential campaign through the
rise of small online contributors might be wiped out by the brute force of millionaires and billionaires determined to have their way?”

The 2012 election cycle will prove to be a fascinating one as Citizens United will carry full sway during a presidential election.


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