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29.9.08

Recusal reform, not public financing, best for judicial races

As has been argued previously, Louisiana would do well to move away from elected state judges to a system where executive appointments with legislative oversight occur, similar to the federal system. But that’s not going to happen anytime soon, if at all. Therefore, one problem that would remain is the campaign finance apparatus that some argue can influence a judge’s decisions. Yet one proposed solution would make the situation even worse.

One issue that has cropped up in the 1st Supreme Court district contest is whether some system of public financing of judicial candidacies should be enacted. While a study that argued there was association between contributions received by the state’s Supreme Court justices and their decision-making was hampered by methodological problems, the theory that this could happen certainly is valid. A study issued by one of the leading legal professional association recommended public funding as an alternative.

One potential model for public financing would be North Carolina’s, where with initial demonstration of some ability to raise funds, after that threshold public financing would take over for the general election. Small donations have risen while overall totals spent have dropped in half, and it enjoys public support.

But regardless of procedure, the basic fundamental error in public financing is it uses government dollars to fund speech and abrogates the right of free speech when limits are placed upon how much can be spent if imposed on candidates. At the federal level this past term the U.S. Supreme Court made that very statement, although state elections can be governed differently and Louisiana could amend its Constitution to permit it.

Yet even this aside, regulating political speech in this way harms the process and creates a solution more intrusive than need be. Judicial contests in particular are the lowest-information races that make it difficult on voters to understand candidate preferences and differences. Artificially determining the amount of money that may be spent by candidates prevents fuller amounts of data about candidates from being dispersed by campaigns, cheapening the process and disserving voters.

Better, there is a solution that permits dissemination of greater amounts of information without treading on free speech rights – recusal requirements. The law could be changed to mandate that if a case has any connection of a donor (of at least a certain amount in a certain time span) to a sitting member of the judiciary – the donor himself, his family, or any business in which he has a significant ownership – either as a party or acting on behalf of a party, for constitutional and certain civil and criminal matters that judge must recuse himself from the case.

This would dramatically decrease donations coming from legal firms whose hopes in donations could be favorable treatment for their clients. It also would do the same for interests who think their cases my end up in front of a judge. As a result, the influence of those who think they can “buy” a decision will be reduced to a minimal level, while donors who give not with any expectation of a payback through the legal system will not be discouraged to express political speech through their contribution choices.

By all means get rid of the elective system of judges first, but if that’s not possible, changing recusal rules brings a scalpel to deal with the problem rather than a chainsaw taken to constitutional rights.

2 comments:

T. Wong said...

What a wonderful idea. All I would need to do, then, is contribute to all of the judges that would not be philosophically aligned with my cause, contribute to them, and thereby cause their recusal from my cases.

Swing and a miss, Professor!

Mung said...

T. Wong, I did not realize they allowed inmate access at the Oakdale Federal pen?

You are correct in your analysis. I'd love to contribute to certain judgesif that meant I would not have to try cases before them. In Avoyelles Parish one lawyer has successfully conflicted out the less liberal judge by suing his homeowners insurance. Now all his cases go to the most liberal judge who awards more money in personal injury cases.
In one judge parishes, this would force the La Supreme Court to appoint pro tem judges at $500 per day is half of the cases. I agree there is an appearance of impropriety with campaign contributors practising before judges, but this is not the answer.