No. 08-205

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

IN THE

Supreme Court of the United States ————

CITIZENS UNITED,

Appellant, 

v.

FEDERAL ELECTION COMMISSION,

Appellee. 

————

On Reargument of Appeal from the

United States District Court

for the District of Columbia

————

BRIEF OF AMICI CURIAE JUSTICE AT STAKE, 

AMERICAN JUDICATURE SOCIETY, THE 

CENTER FOR GOVERNMENTAL STUDIES, 

CITIZEN ADVOCACY CENTER, COMMON 

CAUSE, COLORADO JUDICIAL INSTITUTE, 

DEMOCRACY NORTH CAROLINA, THE 

ILLINOIS CAMPAIGN FOR POLITICAL 

REFORM, JUSTICE FOR ALL (ARIZONA), 

MICHIGAN CAMPAIGN FINANCE NETWORK, 

NORTH CAROLINA CENTER FOR VOTER

EDUCATION, OHIO CITIZEN ACTION, 

PENNSYLVANIANS FOR MODERN COURTS, 

PUBLIC CAMPAIGN, TAKEACTION 

MINNESOTA, TEXANS FOR PUBLIC JUSTICE, 

TRANSPARENCY INTERNATIONAL USA, 

WISCONSIN DEMOCRACY CAMPAIGN, 

CHICAGO APPLESEED, CHICAGO COUNCIL 

OF LAWYERS, AND FORMER CHIEF JUSTICE 

NORMAN S. FLETCHER (GEORGIA, RETIRED)

IN SUPPORT OF APPELLEE

————

* Counsel of Record

JAMES E. SCARBORO *

JESSICA A. SHOEMAKER 

ARNOLD & PORTER LLP

370 17th Street, Suite 4500

Denver, Colorado 80202

(303) 863-1000

Counsel for Amici Curiae
(i)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES................................ ii

INTEREST OF AMICI CURIAE ........................ 1

SUMMARY OF ARGUMENT............................. 2

ARGUMENT........................................................ 3

I. THIS COURT’S DECISION WILL 

AFFECT JUDICIAL SELECTION IN 

THE MAJORITY OF STATES................. 3

II. UNREGULATED CORPORATE TREASURY SPENDING IN JUDICIAL 

ELECTIONS WOULD ERODE JUDICIAL INTEGRITY .................................... 11

A. The Public Believes That Money 

Spent In Campaigns Influences 

Judges’ Decisions In Particular 

Cases .................................................... 13

B. There Is A Substantial Risk That 

Money Spent In Campaigns Affects 

Judicial Decisions................................ 15

C. Litigants, Including Corporations, 

Feel Undue Pressure To Spend 

Money In Campaigns When Finance 

Regulations Are Removed................... 17

III. EXPANDING CORPORATE TREASURY SPENDING IN JUDICIAL 

ELECTIONS WOULD INCREASE 

CAPERTON DUE PROCESS CLAIMS... 18

CONCLUSION .................................................... 20

APPENDIX .......................................................... 1a
ii

TABLE OF AUTHORITIES

CASES Page(s)

Austin v. Michigan Chamber of Commerce,

494 U.S. 652 (1990)..................................passim

Caperton v. A.T. Massey Coal Co., Inc., 129 

S.Ct. 2252 (2009)......................................passim

Commonwealth Coatings Corp. v. Cont’l 

Cas. Co., 393 U.S. 145 (1968) ................... 12

Dimick v. Republican Party of Minnesota,

546 U.S. 1157 (2006)................................. 17

FEC v. Massachusetts Citizens for Life, 

Inc., 479 U.S. 238 (1986)........................... 12, 16

McConnell v. Federal Election Commission, 540 U.S. 93 (2003)...........................passim

Republican Party of Minnesota v. White,

536 U.S. 765 (2002)..............................11, 13, 16

STATUTES

Ga. Code Ann. § 21-5-41 (2006) ................... 11

OTHER AUTHORITIES

American Bar Association Standing 

Committee on Judicial Independence, 

Public Financing of Judicial Campaigns

(2002)........................................................3, 9, 16

American Judicature Society, http://www.

judicialselection.us/judicial_selection/ ..3, 10, 11

Annenberg Public Policy Center, Public 

Understanding of and Support for 

the Courts (2007), available at http://

www.law.georgetown.edu/Judiciary/docu

ments/finalversionJUDICIALFINDING

Soct1707.pdf.............................................. 13
iii

TABLE OF AUTHORITIES—Continued

Page

Larry C. Berkson, American Judicature 

Society, Judicial Selection in the United 

States: A Special Report (1980) (updated 

by Rachel Caufield in 2004), available at

http://www.judicialselection.us/uploads/ 

documents/Berkson_1196091951709.pdf. 3-4

Chris W. Bonneau, The Effects of Campaign

Spending in State Supreme Court Elections, 60 Polit. Res. Q. 489 (2007) ............ 6

Chris W. Bonneau, Patterns of Campaign 

Spending and Electoral Competition in 

State Supreme Court Elections, 25 Just. 

Sys. J. 21 (2004)........................................ 6

Brennan Center for Justice, Buying Time—

2008: Wisconsin (May 12, 2008), available

at http://www.brennancenter.org/content/

resource/buying_time_2008_wisconsin.... 8

Brennan Center for Justice, Buying Time—

Spending Rockets Before Elections

(Nov. 13, 2008), available at http://www.

brennancenter.org/content/resource/buyi

ng_time_spending_rockets_before_electi

ons/ ............................................................ 9

Brennan Center for Justice, State Judicial 

Elections, available at http://www.

brennancenter.org/content/section/categ

ory/state_judicial_elections ...................... 9
iv

TABLE OF AUTHORITIES—Continued

Page

Brennan Center for Justice et al., Press 

Release, Special Interests Dominate Wisconsin Airwaves in High Court Race

(Mar. 20, 2008), available at http://

brennan.3cdn.net/6dd3e14a629d0584f3_

d3m6bhjqu.pdf .......................................... 8

Committee for Economic Development, 

Justice for Hire: Improving Judicial Selection (2002), available at http://

www.ced.org/images/library/reports/justi

ce_for_hire/report_judicialselection.pdf... 9

Committee for Economic Development, 

Brief of Amicus Curiae in Support of 

Petitioners, Caperton v. A.T. Massey 

Coal Co. Inc., 129 S.Ct. 2252 (2009) (No. 

08-22), 2008 WL 3165832 ......................... 17-18

Concerned Corporations, Brief of Amicus 

Curiae in Support of Petitioners, Dimick 

v. Republican Party of Minn., 546 U.S. 

1157 (2006) (No. 05-566), 2006 WL 

42102. ........................................................ 17

Conference of Chief Justices, Brief As 

Amicus Curiae In Support Of Neither 

Party, Caperton v. A.T. Massey Coal Co., 

Inc., 129 S.Ct. 2252 (2009) (No. No. 08-

22), 2009 WL 45973 .................................. 5

Conference of Chief Justices, Resolution of 

February 7, 2007, available at http://ccj.

ncsc.dni.us/JudicialSelectionResolutions/

DeclarationJudicialElections.html........... 5
v

TABLE OF AUTHORITIES—Continued

Page

Julian Eule, Crocodiles in the Bathtub: 

State Courts, Voter Initiatives and the 

Threat of Electoral Reprisal, 65 U. Colo.

L. Rev. 733 (1994) ..................................... 16

Stacy Forster, Spending in Supreme Court 

Race Just Under $6 Million, Milwaukee 

J. Sentinel, Jul. 22, 2008, available at

http://blogs.jsonline.com/allpoliticswatch/

archive/2008/07/22/spending-in-supreme

-court-race-just-under-6-million.aspx ..... 8

Stacy Forster, WMC Ad Takes On “Loophole

Louie,” Campaign Watchdog Raps It, 

Milwaukee J. Sentinel, Mar. 26, 2008, 

available at http://blogs.jsonline.com/

allpoliticswatch/archive/2008/03/26/wmc

-ad-takes-on-quot-loophole-louie-quotcampaign-watchdog-raps-it.aspx ............. 8

Georgia State Ethics Commission, Memorandum of February 24, 2009, available 

at http://ethics.georgia.gov/references/

contributionlimits.aspx............................. 11

James L. Gibson and Gregory A. Caldeira, 

Campaign Support, Conflicts of Interest, 

and Judicial Impartiality: Can the Legitimacy of Courts Be Rescued by Recusals? (2009), available at http:// 

polisci.wustl.edu/media/download.php?p

age=faculty&paper=157 ........................... 14
vi

TABLE OF AUTHORITIES—Continued

Page

Deborah Goldberg and Samantha Sanchez, Justice at Stake, The New Politics 

of Judicial Elections 2002 (2002), available at http://www.gavelgrab.org/wpcontent/resources/NewPoliticsReport2002.

pdf.............................................................. 6

Deborah Goldberg, Brennan Center for 

Justice, Public Funding of Judicial Elections: Financing Campaigns for Fair 

and Impartial Courts (2002), available 

at http://www.brennancenter.org/page/-

/d/ji3.pdf..................................................... 4, 9

Deborah Goldberg et al., Justice at Stake, 

The New Politics of Judicial Elections 

2004 (2004), available at http://www.

gavelgrab.org/wp-content/resources/New

PoliticsReport2004.pdf.............................. 7

Greenberg Quinlan Rosner Research Inc. 

& Am. Viewpoint, Justice At Stake Frequency Questionnaire (2001), available 

at http://www.gavelgrab.org/wp-content/ 

resources/polls/JASNationalSurveyResult

s.pdf ........................................................... 14

Dee J. Hall, High Court Races as Barroom 

Brawls, Wisconsin State J., Apr. 6, 2008, 

at A1, available at 2008 WLNR 6546125.. 8

Kermit L. Hall, The Judiciary on Trial: 

State Constitutional Reform and the 

Rise of an Elected Judiciary, 1846-1860 

44 Historian 337 (1983)............................ 4
vii

TABLE OF AUTHORITIES—Continued

Page

E. Haynes, Selection and Tenure of Judges

(1944)......................................................... 4

Justice At Stake Campaign, March 2004 

Survey Highlights: Americans Speak 

Out On Judicial Elections (2004), available at http://faircourts.org/files/Zogby

PollFactSheet.pdf...................................... 14

Stephen Kaufman, Contributions to Judicial Races Worrisome, Justice O’Connor 

Says (Oct. 6, 2008), available at http://

www.america.gov/st/usg-english/2008/

October/20081006101039esnamfuak0.

1795618.html ............................................ 13

Adam Liptak & Janet Roberts, Campaign 

Cash Mirrors a High Court’s Rulings, 

N.Y. Times, Oct. 1, 2006, at A1, available at http://www.nytimes.com/2006/10/

01/us/01judges.html.................................. 15, 16

National Institute on Money in State 

Politics, available at http://www.follow

themoney.org...................................... 5, 6, 10-11

Paul J. Nyden, Mining Appeal Moving 

Along: Olson to Argue Harman Case 

Against Massey Before Supreme Court, 

The Charleston Gazette, May 16, 2008, 

available at http://www.wvgazette.com/

News/200805150741 ................................. 11, 12

Thomas R. Phillips, The Merits of Merit 

Selection, 32 Harv. J.L. & Pub. Pol’y 67 

(2009)......................................................... 9
viii

TABLE OF AUTHORITIES—Continued

Page

Jesse Rutledge, ed., Justice at Stake, The 

New Politics Of Judicial Elections in the 

Great Lakes States, 2000–2008 (2008), 

available at http://www.followthemoney.

org/press/Reports/NPJEGreatLakes2000

-2008.FINAL.pdf....................................... 7

James Sample et al., Justice at Stake, The 

New Politics of Judicial Elections 2006

(2006), available at http://www.gavel

grab.org/wp-content/resources/NewPoliti

csofJudicialElections2006.pdf. ................. 5, 7

Roy A. Schotland, New Challenges To 

States’ Judicial Selection, 95 Geo. L. J. 

1077 (2007)................................................ 6

Roy A. Schotland, Republican Party of 

Minnesota v. White: Should Judges Be 

More Like Politicians?, 41 No. 3 Judges’ 

J. 7 (2002).................................................. 4

Ciara Torres-Spelliscy et al., Brennan 

Center for Justice at New York University School of Law, Electoral Competition and Low Contribution Limits

(2009), available at http://www.brennan

center.org/page/-/publications/Electoral.

Competition.pdf ........................................ 10

Texans for Public Justice, Pay to Play: 

How Big Money Buys Access to the Texas 

Supreme Court (2001), available at http://

www.tpj.org/docs/2001/04/reports/paytop

lay/paytoplay.pdf....................................... 15
ix

TABLE OF AUTHORITIES—Continued

Page

Tort Reformers Score Victories in Midwest 

Judicial Races, Insurance J., Nov. 22, 

2004, available at http://www.insurance 

journal.com/magazines/midwest/2004/11/

22/features/49934.htm.............................. 7

Alexander Wohl, Justice for Rent, The Am. 

Prospect, Nov. 30, 2002, available at

http://www.prospect.org/cs/articles?article

=justice_for_rent....................................... 14
INTEREST OF AMICI CURIAE 1

Amici curiae represent 20 national, regional, and 

state organizations and a former chief justice of the 

Georgia Supreme Court. Amici curiae are all committed to preserving judicial independence and integrity. Amici curiae believe that further restricting 

government’s ability to regulate organizational campaign spending, including from corporate and other 

outside entities, could have unintended consequences 

for the judiciary and respectfully submit this brief to 

highlight this important issue. 

Justice at Stake, and its partners, believe that democracy depends on fair and impartial courts that 

can protect individual rights, guarantee equal justice, 

and make decisions based solely on the facts and the 

law-without fear of intimidation. Justice at Stake 

partners and allies have come together to help 

Americans keep special interests and political pressure out of the courtroom. 

The majority of state judges are subject to some 

election process, and amici curiae believe that appropriate state regulation of money in judicial selection 

is vital to protecting the actual and perceived integrity of the judiciary. 

A description of each amicus organization and individual may be found in the Appendix to this brief. 

 1 The parties’ letters of consent to the filing of this brief have 

been filed with the Clerk. Under Rule 37.6 of the Rules of this 

Court, amici state that no counsel for a party authored this brief 

in whole or in part, nor did any person or entity, other than 

amici curiae or their counsel, make a monetary contribution to 

the preparation or submission of this brief.
2

SUMMARY OF ARGUMENT

As part of the broader list of threats articulated by 

other amici curiae, Justice at Stake and its allies 

write to emphasize that overruling Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and 

consequently portions of McConnell v. Federal Election Commission, 540 U.S. 93 (2003), would have a 

profound and negative effect on the selection of state 

court judges and could damage the integrity of the 

judiciary. 

Special interest spending on judicial elections-by 

corporations, labor unions, and other groups-poses an 

unprecedented threat to public trust in the courts 

and to the rights of litigants. This has been recognized and discussed by journalists, academics, and 

leading jurists, including the Conference of Chief 

Justices. This Court itself held last term in Caperton 

v. A.T. Massey Coal Co., Inc., 129 S.Ct. 2252 (2009), 

that some independent expenditures in judicial campaigns are so excessive that they in fact deny litigants due process under the law. If corporate treasury spending were unregulated in judicial elections, 

these concerns would only get worse.

Alarmed about the damage of unbridled politicizing 

of judicial elections, many states are in the process of 

responding with significant reform efforts aimed at 

shoring up the public’s confidence in the fairness and 

integrity of the nation’s elected judges. Revisiting 

how campaigns are funded is one important part of 

this effort. Eliminating states’ longstanding ability 

to regulate corporate influence on judicial elections 

will cripple these essential reform efforts and exacerbate the recent explosion of special interest pressure 

on the courts.
3

Unleashing corporate treasury funds on judicial 

elections also will distract judges from their most important job: guaranteeing impartial justice to the litigants who come before them. And because escalating 

corporate campaign expenditures will inevitably 

breed more recusal and due process motions under 

the Caperton decision, overruling Austin and McConnell will make the job of sitting judges even more 

difficult. 

ARGUMENT

I. THIS COURT’S DECISION WILL AFFECT 

JUDICIAL SELECTION IN THE MAJORITY OF STATES.

Although various states have elected judges for 

many years, the volume and corrosive potential effect 

of campaign contributions and third-party expenditures on judicial candidates is now more significant 

than ever before. Total campaign expenditures for 

state supreme court races have more than doubled in

the last ten years, and corporations—along with labor 

unions, trade associations, attorneys, and others

seeking victory in the courtroom—are increasingly 

seeking to dominate these campaigns. 

Unlike the federal system of judicial appointment 

by the president followed by Senate confirmation for 

lifetime tenure, 39 states use some form of judicial 

election for their appellate or trial courts.2

 2 See generally American Judicature Society, Methods of 

Judicial Selection, available at http://www.judicialselection.

us/judicial_selection/methods/selection_of_judges.cfm; see also 

American Bar Association Standing Committee on Judicial 

Independence, Public Financing of Judicial Campaigns 5 (2002);

Larry C. Berkson, American Judicature Society, Judicial Selection in the United States: A Special Report 2-3 (1980) (updated 

 The 
4

majority of the country’s approximately 10,000 state 

judges are selected or retained through some variety 

of election.3

The use of judicial elections as a selection method 

has not always been so common. When the Federal 

Constitution was adopted in 1789, all state constitutions provided for the appointment of judicial officers. 

Starting with Georgia in 1812, states began adopting 

varying systems for electing judges to make courts 

more democratic and accountable and to secure a judiciary that was “free from the corrosive effects of 

politics and able to restrain legislative power.”

 There is no uniformity in election 

processes or rules among the states. Elections vary 

from traditional partisan contests to nonpartisan 

races to retention elections, in which incumbent 

judges remain in office unless a majority of the electorate votes for removal.

4

 By 

the time the Fourteenth Amendment was ratified, 24 

of 34 states elected some or all judges.5

In 2007 the Conference of Chief Justices adopted a 

resolution urging action to address growing problems 

 

by Rachel Caufield in 2004), available at http://www.judicial 

selection.us/uploads/documents/Berkson_1196091951709.pdf; 

Deborah Goldberg, Brennan Center for Justice, Public Funding 

of Judicial Elections: Financing Campaigns for Fair and 

Impartial Courts 4-5 (2002), available at http://www.brennan

center.org/page/-/d/ ji3.pdf.

3 Roy Schotland, Republican Party of Minnesota v. White: 

Should Judges Be More Like Politicians?, 41 No. 3 Judges’ J. 7, 

9 (2002).

4 Kermit L. Hall, The Judiciary on Trial: State Constitutional 

Reform and the Rise of an Elected Judiciary, 1846-1860, 44 

Historian 337, 338-39 (1983).

5 See Berkson, supra note 2, at 1; E. Haynes, Selection and 

Tenure of Judges 99-135 (1944).
5

in judicial elections.6 As the Conference stated in a 

recent amicus brief to this Court, “if judicial elections 

create problems with fairness—real and perceived—

of judicial outcomes, the Conference of Chief Justices 

and other groups dedicated to enhancing the effective 

administration of justice in America must address 

those problems in ways that go beyond mere advocacy for judicial selection reform.”7

Funding of judicial elections thus has emerged as a 

central concern for groups seeking to enhance the effective administration of justice. As in most competitive campaigns for elected office, the cost of running 

for judicial office has reached unprecedented levels. 

Nationally, state supreme court candidates raised 

and spent over $200.4 million in judicial elections 

from 1999 to 2008.

 Regulation of 

campaign finance and selection system change are 

both viable approaches to the challenges of increasing 

money in judicial elections.

8

 This figure is more than double 

the $85.4 million raised for the same purpose from 

1989 to 1998.9

 6 Conference of Chief Justices, Resolution of February 7, 2007,

available at http://ccj.ncsc.dni.us/JudicialSelectionResolutions/

DeclarationJudicialElections.html.

 Between 1993 and 2002, winning can7 Brief of The Conference of Chief Justices as Amicus Curiae

In Support of Neither Party at 6-7, Caperton v. A.T. Massey Coal

Co., Inc., 129 S.Ct. 2252 (2009).

8 See generally National Institute on Money in State Politics, 

available at http://www.followthemoney.org/index.phtml; James 

Sample et al., Justice at Stake, The New Politics of Judicial 

Elections 2006 30 (2006), available at http://www.gavelgrab.org/

wp-content/resources/NewPoliticsofJudicial Elections2006.pdf.

9 Id.
6

didates in supreme court elections spent $91 million, 

while losing candidates spent $53 million.10

Increasing Fundraising in 

State Supreme Court Elections 11

 10 Deborah Goldberg and Samantha Sanchez, Justice at 

Stake, The New Politics of Judicial Elections 2002 16 (2002), 

available at http://www.gavelgrab.org/wp-content/resources/New

PoliticsReport2002.pdf. Increased campaign spending affects 

electoral support: For example, for every 1 percent increase in 

challenger spending, incumbent electoral support declines by 

approximately 1.8 percent. Chris W. Bonneau, The Effects of 

Campaign Spending in State Supreme Court Elections, 60 Polit. 

Res. Q. 489, 497 (2007).

11 This table is based on Justice at Stake analysis of contribution data maintained by the National Institute on Money in 

State Politics. See National Institute on Money in State Politics, 

Industry Influence Search Tool, available at http://www.follow

themoney.org/database/IndustryTotals.phtml; see also Roy A. 

Schotland, New Challenges To States’ Judicial Selection, 95 Geo. 

L. J. 1077, 1080 (2007); Chris W. Bonneau, Patterns of Campaign Spending and Electoral Competition in State Supreme 

Court Elections, 25 Just. Sys. J. 21, 24-27 (2004). The 2007 to 

2008 data is preliminary. 
7

Judicial election spending records have been 

smashed in many states during the past decade. For 

example, in 2004, $9.3 million was expended in the 

Illinois Supreme Court election, exceeding the spending in eighteen U.S. Senate contests that year.12 This 

Illinois race was the most expensive contested 

judicial election in American history.13 On election 

night, the victor, Judge Lloyd Karmeier, called the 

spending “obscene for a judicial race” and asked, 

“What does it gain people? How can people have 

faith in the system?”14

In the 2005 to 2006 election cycle, candidates for all 

open Alabama Supreme Court seats raised a combined $13.4 million, surpassing the previous state 

record by more than a million dollars.15 The three 

candidates for chief justice raised a combined $8.2 

million, making it the most expensive judicial race in 

state history, and the second most expensive contested judicial campaign in American history.16

These official campaign contributions only reveal 

a small portion of the recent escalation in judicial 

election spending. In many cases, independent ex-

 12 Deborah Goldberg et al., Justice at Stake, The New Politics 

of Judicial Elections 2004 vi (2004), available at http://www.

gavelgrab.org/wp-content/resources/NewPoliticsReport2004. pdf.

13 Jesse Rutledge, ed., Justice at Stake, The New Politics Of 

Judicial Elections in the Great Lakes States, 2000–2008 1 

(2008), available at http://www.followthemoney.org/press/Report

s/NPJEGreatLakes2000-2008.FINAL.pdf.

14 Tort Reformers Score Victories in Midwest Judicial Races, 

Insurance J., Nov. 22, 2004, available at http://www.insurance 

journal.com/magazines/midwest/2004/11/22/features/49934.htm.

15 Sample et al., supra note 8, at 5.

16 Id. at 15, 26.
8

penditures by special interest groups have exceeded 

spending by judicial candidates themselves. These 

numbers are more difficult to track because often 

states that do choose to permit corporate independent 

expenditures often do not require reporting of those 

expenditures. For example, in the 2008 Wisconsin 

Supreme Court election, third-party interest groups 

outspent official candidates four-to-one.17 Focusing 

only on television advertising, special interest groups 

were responsible for almost nine out of every ten 

dollars spent during the campaign.18 One corporate 

group in particular attacked incumbent Justice Louis 

Butler in advertisements by referring to him as 

“Loophole Louie” and accusing him of preferring 

criminals over the police.19

 17 See Stacy Forster, Spending in Supreme Court Race Just 

Under $6 Million, Milwaukee J. Sentinel (Jul. 22, 2008), available at http://blogs.jsonline.com/allpoliticswatch/archive/2008/

07/22/spending-in-supreme-court-race-just-under-6-million. aspx. 

In the same election, another report showed that 95 percent of 

television advertising was paid for by outside interest groups 

while the candidates themselves paid for only 5 percent of the 

advertising in the month preceding the last two weeks of the 

campaign. Press Release, Brennan Center for Justice et al., 

Special Interests Dominate Wisconsin Airwaves in High Court 

Race (Mar. 20, 2008), available at http://brennan.3cdn.net/6dd

3e14a629d0584f3_d3m6bhjqu.pdf. 

 

18 Brennan Center for Justice, Buying Time—2008: Wisconsin

(May 12, 2008), available at http://www.brennancenter.org/con

tent/resource/buying_time_2008_wisconsin.

19 Stacy Forster, WMC Ad Takes On “Loophole Louie,”

Campaign Watchdog Raps It, Milwaukee J. Sentinel (Mar. 26, 

2008), Mar. 26, 2008, available at http://blogs.jsonline.com/all

politicswatch/archive/2008/03/26/wmc-ad-takes-on-quot-loopholelouie-quot-campaign-watchdog-raps-it.aspx; see also Dee J. Hall, 

High Court Races as Barroom Brawls, Wisconsin State J., Apr. 

6, 2008, at A1, available at 2008 WLNR 6546125.
9

This recent Wisconsin election is just one example, 

of many, in which outside interests have increasingly 

sought to influence judicial elections through independent expenditures.20

In response to this escalating arms race, the 

American Bar Association and other organizations 

have endorsed adopting a system of public financing 

for judicial elections in states that elect judges, which 

would restrain financial influences in elections. 

However, because of budget constraints and other 

political obstacles, few jurisdictions have yet moved 

to a fully functioning public financing system.

 

21 In all 

states with judicial elections except New Mexico, 

Wisconsin and North Carolina, judicial candidates 

are entirely dependent on private funds to finance 

their campaigns.22

Instead of providing public funds for judicial 

campaigns, most states primarily regulate how 

private financing of judicial elections can occur, 

 

 20 See generally Thomas R. Phillips, The Merits of Merit 

Selection, 32 Harv. J.L. & Pub. Pol’y 67, 81-82 (2009); Brennan 

Center for Justice, Buying Time—Spending Rockets Before 

Elections (Nov. 13, 2008), available at http://www.brennancent

er.org/content/resource/buying_time_spending_rockets_before_el

ections/.

21 See generally Public Financing of Judicial Campaigns, 

supra note 2, at 30; Brennan Center for Justice, State Judicial 

Elections, available at http://www.brennancenter.org/content/

section/category/state_judicial_elections; Committee for Economic 

Development, Justice for Hire: Improving Judicial Selection 1-4 

(2002), available at http://www.ced.org/images/library/reports/

justice_for_hire/report_judicialselection.pdf.

22 Deborah Goldberg, Brennan Center for Justice, Public 

Funding of Judicial Elections: Financing Campaigns for Fair 

and Impartial Courts 4 (2002), available at http://brennan.3cdn.

net/41535ba38d3d460fc6_kwm6b1ecu.pdf. 
10

including the extent to which corporate and labor 

union funds can be used. And, as judicial elections 

are becoming increasingly costly and politicized, 

some reform efforts—relying on this Court’s precedents in Austin and McConnell—are focusing on how 

corporate and other financing is regulated. 

Data show that looser limits on corporate and other 

campaign financing translate to a greater potential 

for runaway spending on state supreme court 

elections.23 For example, in Alabama and Illinois, 

which are among the states with the loosest regulations,24 contributions to judicial campaigns between 

2000 and 2008 totaled over $41 million and $20 

million, respectively.25

 23 See generally Ciara Torres-Spelliscy et al., Brennan Center 

for Justice at New York University School of Law, Electoral 

Competition and Low Contribution Limits 3 (2009), available at 

http://www.brennancenter.org/page/-/publications/Electoral.Com

petition.pdf (explaining that lower contribution limits increase 

the chance that incumbents will face viable election challenges 

and increase the overall competitiveness of campaigns). 

 In contrast, in Georgia and 

24 Alabama does not limit judicial campaign contributions 

from individuals or PACs, but limits corporate contributions to 

$500; Illinois does not impose any limits on judicial campaign 

contributions. See American Judicature Society, Judicial Campaigns and Elections: Campaign Financing, available at http://

www.judicialselection.us/judicial_selection/campaigns_and_electi

ons/campaign_financing.cfm.

25 See National Institute on Money in State Politics, Advanced 

Search Tool, available at http://www.followthemoney.org/data

base/advancedsearch.phtml. Notably, in Illinois, where the 

winner himself called the $9.3 million spent in one election 

“obscene,” there currently are no limits on corporate spending. 

See American Judicature Society, Judicial Campaigns and 

Elections: Illinois, available at http://www.judicialselection.us/

judicial_selection/campaigns_and_elections/campaign_financing.

cfm?state=IL; National Institute on Money in State Politics, 
11

Arkansas, which have tighter regulations,26 contributions to judicial campaigns between 2000 and 2008 

totaled only approximately $3.7 million and $1.9 

million, respectively.27

Overruling Austin would pave the way to more 

“obscene” scenarios like the one experienced in Illinois and could produce factual situations that are 

even more extreme than the one presented in Caperton, where a single executive spent millions of dollars 

to elect a judge who would help decide his anticipated 

appeal. 

II. UNREGULATED CORPORATE TREASURY SPENDING IN JUDICIAL ELECTIONS WOULD ERODE JUDICIAL 

INTEGRITY.

There is no question that “[j]udicial integrity is . . . 

a state interest of the highest order.” Republican 

Party of Minn. v. White, 536 U.S. 765, 793 (2002) (J. 

Kennedy, concurring). Preserving the integrity of the 

judiciary requires both that litigants actually receive 

their constitutional due process before a neutral 

 

available at http://www.followthemoney.org/database/state_over

view.phtml?s=IL&y=2004.

26 Georgia limits individual, PAC, and corporate contributions 

to $6,100. See Ga. Code Ann. § 21-5-41 (2006); State Ethics 

Commission, Memorandum of February 24, 2009, available at 

http://ethics.georgia.gov/references/contributionlimits.aspx. Arkansas limits contributions from individuals to $1,000 and from 

political parties and PACs to $2,500. See American Judicature 

Society, supra note 24. 

27 See National Institute on Money in State Politics, supra

note 25. Paul J. Nyden, Mining Appeal Moving Along: Olson to 

Argue Harman Case Against Massey Before Supreme Court, The 

Charleston Gazette, May 16, 2008, available at http://www.

wvgazette.com/News/200805150741.
12

decision—maker-which the Caperton decision acknowledged is not always possible when a litigant 

spends extraordinary amounts on a judicial election—

and that the public continues to place its confidence 

in the decisions of the judiciary. As this Court has 

explained, “any tribunal permitted by law to try cases 

and controversies not only must be unbiased but also 

must avoid even the appearance of bias.” Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 

145, 150 (1968).

As Citizens United’s counsel, Theodore Olson, has 

acknowledged: “The improper appearance created by 

money in judicial elections is one of the most important issues facing our judicial system today.”28

 28 Paul J. Nyden, Mining Appeal Moving Along: Olson to 

Argue Harman Case Against Massey Before Supreme Court, The 

Charleston Gazette, May 16, 2008, available at http://www.

wvgazette.com/News/200805150741.

 Overruling Austin and McConnell would prevent states 

from regulating how non-voting corporations influence judicial elections and would risk dangerously 

eroding judicial integrity, both real and perceived. 

This Court has repeatedly recognized that corporations have unique state-conferred abilities to accumulate wealth and exert a distorted political advantage. See FEC v. Massachusetts Citizens for Life, 

Inc., 479 U.S. 238, 258 (1986). Overruling Austin

would not only disregard this long-held observation 

but would undermine this Court’s recognition just 

last term in Caperton that extreme independent 

expenditures can cause due process concerns. It 

might also trigger a domino effect, encouraging states 

to dismantle restrictions on union and other group 

spending. 
13

In the words of Justice O’Connor: “Justice is a 

special commodity. The more you pay for it, maybe 

the less it’s worth.”29

A. The Public Believes That Money Spent 

In Campaigns Influences Judges’

Decisions In Particular Cases. 

The appearance of bias is as dangerous as actual 

bias. Perceptions of a biased judiciary lead to 

distrust, which undermines the effective administration of justice. See, e.g., White, 536 U.S. at 789 (J. 

O’Connor, concurring) (“[E]ven if judges were able to 

suppress their awareness of the potential electoral 

consequences of their decisions and refrain from 

acting on it, the public’s confidence in the judiciary 

could be undermined simply by the possibility that 

judges would be unable to do so.”). Data repeatedly 

show that the public firmly believes that judicial 

outcomes are in fact influenced by campaign contributions. 

• One recent survey conducted in 2007 for the 

Annenberg Public Policy Center showed that 

69 percent of the public believe that raising 

money for elections affects a judge’s rulings to 

a moderate or great extent.30

• A 2002 study by the Texas State Bar and the 

Texas Supreme Court found that 79 percent 

 29 Stephen Kaufman, “Contributions to Judicial Races Worrisome, Justice O’Connor Says,” (Oct. 2, 2008), available at http://

www.america.gov/st/usg-english/2008/October/20081006101039es

namfuak0.1795618.html.

30 Annenberg Public Policy Center, Public Understanding of 

and Support for the Courts 3 (2007), available at http://www.

law.georgetown.edu/Judiciary/documents/finalversionJUDICIAL

FINDINGSoct1707.pdf.
14

of attorneys surveyed believed that campaign 

contributions have a significant influence on a 

judge’s decision.31

• In 2004, 70 percent of Americans surveyed 

by Justice at Stake believed that judicial 

campaign contributions have at least some 

influence on judges’ decisions in the courtroom.32 Likewise, in 2001, 76 percent of 

those surveyed believed campaign contributions influence judges’ decisions.33

These surveys of the American public are consistent with recent academic research showing that “the 

receipt of campaign contributions can indeed 

threaten legitimacy. For many citizens, contributions 

to candidates for judicial office imply a conflict of 

interest, even a quid pro quo relationship between 

the donor and the judge, which undermines perceived 

impartiality and legitimacy.”

34

These data indicate that elected courts are already 

facing a public perception of bias. Increasing 

 31 Alexander Wohl, Justice for Rent, The Am. Prospect, Nov. 

30, 2002, available at http://www.prospect.org/cs/articles?article

=justice_for_rent.

32 Justice At Stake Campaign, March 2004 Survey Highlights: 

Americans Speak Out On Judicial Elections (2004), available at

http://faircourts.org/files/ZogbyPollFactSheet.pdf.

33 Greenberg Quinlan Rosner Research Inc. & Am. Viewpoint, 

Justice At Stake Frequency Questionnaire 4 (2001), available at

http://www.gavelgrab.org/wp-content/resources/polls/JASNational

SurveyResults.pdf.

34 James L. Gibson and Gregory A. Caldeira, Campaign Support, Conflicts of Interest, and Judicial Impartiality: Can the 

Legitimacy of Courts Be Rescued by Recusals? 6 (2009), available 

at http://polisci.wustl.edu/media/download.php?page=faculty&pap

er=157.
15

expenditures and influence from corporations with 

cases before the courts would only exacerbate these 

concerns and stymie important reform efforts. 

B. There Is A Substantial Risk That 

Money Spent In Campaigns Affects 

Judicial Decisions. 

The effects of judicial campaign contributions and 

independent expenditures extend beyond public perception. Reports show that some campaign contributions are in fact correlated with positive procedural 

and substantive outcomes for donors, which certainly 

raises judicial integrity issues.

For example, a 2006 New York Times report reviewed twelve years of Ohio Supreme Court decisions 

and found that Ohio justices routinely sat on cases 

after having received campaign contributions from 

the parties involved; those justices then voted in 

favor of their contributors 70 percent of the time.35

Likewise, a 2001 report concluded that “across the 

board, the more a petitioner [donated to candidates 

running for the Texas Supreme Court], the greater 

the likelihood that the court would accept a given 

petition.”36

Some judges have candidly acknowledged the practical implications of the cost of judicial campaigns for 

court decisions. In the same New York Times article, 

one Ohio justice candidly acknowledged: 

 35 Adam Liptak & Janet Roberts, Campaign Cash Mirrors a 

High Court’s Rulings, N.Y. Times, Oct. 1, 2006, at A1, available 

at http://www.nytimes.com/2006/10/01/us/01judges.html.

36 Texans for Public Justice, Pay to Play: How Big Money 

Buys Access to the Texas Supreme Court 10 (2001), available at 

http://www.tpj.org/docs/2001/04/reports/paytoplay/paytoplay.pdf.
16

“I never felt so much like a hooker down by the 

bus station in any race I’ve ever been in as I did 

in a judicial race,” said Justice Paul E. Pfeifer, a 

Republican member of the Ohio Supreme Court. 

“Everyone interested in contributing has very 

specific interests.”

“They mean to be buying a vote,” Justice Pfeifer 

added. “Whether they succeed or not, it’s hard to 

say.”37

As former California Supreme Court Justice Otto 

Kaus observed, trying to set aside the political consequences of high-profile judicial decisions as an elected 

judge is “like ignoring a crocodile in your bathtub.”38 

There is no reason to doubt that the jaws of that 

crocodile would loom as large—or larger—if judges 

knew their decisions affected well-known corporate 

interests that had contributed to or expended large 

amounts on their judicial campaigns.39

 37 Liptak & Roberts, supra note 35, at A1.

38 White, 536 U.S. at 789. (J. O’Connor, concurring) (citing 

Julian Eule, Crocodiles in the Bathtub: State Courts, Voter Initiatives and the Threat of Electoral Reprisal, 65 U. Colo. L. Rev. 

733, 739 (1994)).

39 As the Court has observed, corporations also have the power to exert a corrosive and distorting influence. Massachusetts 

Citizens for Life, 479 U.S. at 257. Well-funded single-issue 

groups have an easier time influencing a “comparatively small, 

highly motivated block of voters to affect” a judicial election.

Public Financing of Judicial Campaigns, supra note 2, at 18 

(further stating that “these groups politicize judicial elections 

because they seek to link an incumbent’s tenure in office to her 

position on a single, politically incendiary issue”).
17

C. Litigants, Including Corporations, Feel 

Undue Pressure To Spend Money In 

Campaigns When Finance Regulations 

Are Removed. 

The pressures created by corporate giving to judicial campaigns extend to businesses, as well. For 

example, in an amicus brief filed in Dimick v. Republican Party of Minnesota, 546 U.S. 1157 (2006), 39 

national corporations explained that they “often have 

reasons for concern about—and many of them have 

had at least one experience of—receiving what 

appears to be less than fair and impartial justice in 

jurisdictions where they are not located and have not 

contributed to or been solicited by judicial candidates.”40

A legal environment that assures impartial and 

predictable outcomes serves the best interests of 

corporations. As the Committee for Economic Development has noted, the business community’s belief 

“that justice is even-handed affects economic decision-making, reduces the perception of risk, and 

encourages consistent adherence to transparent rules 

of law.”

 The corrosive effect of corporate giving thus 

works in both directions. Overruling Austin increases the likelihood of an inverse scenario from 

that presented in Caperton, where a corporate litigant fears a lack of due process under law by virtue 

of not having contributed to or spent large amounts 

on a judicial election.

41

 40 Brief of Amicus Curiae Concerned Corporations in Support 

of Petitioners at 3, Dimick v. Republican Party of Minn., 546 

U.S. 1157 (2006) (No. 05-566), 2006 WL 42102. 

 

41 Brief of Amicus Curiae the Committee for Economic Development in Support of Petitioners at 5, Caperton v. A.T. Massey 
18

Moreover, even where corporations have no intention of skewing the results of litigation, a high 

volume of corporate expenditures on judicial 

campaigns creates an appearance of seeking favor 

that adversely affects the public perception of both 

the courts and the corporations. 

III. EXPANDING CORPORATE TREASURY 

SPENDING IN JUDICIAL ELECTIONS 

WOULD INCREASE CAPERTON DUE 

PROCESS CLAIMS. 

Just last term in Caperton, this Court acknowledged that self-interested campaign spending can in 

fact create a Fourteenth Amendment due process 

threat to the guarantee of an impartial tribunal. The 

Court explained that “[j]ust as no man is allowed to 

be a judge in his own cause, similar fears of bias can 

arise when-without the consent of the other parties-a 

man chooses the judge in his own cause.” Caperton, 

129 S.Ct. at 2265. In Caperton, the Court held that 

campaign contributions and expenditures are unconstitutionally dangerous where “under a realistic 

appraisal of psychological tendencies and human 

weakness” the spending “poses such a risk of actual 

bias or prejudgment” that the elected judge cannot 

implement the guarantee of due process and there 

would be a “possible temptation to the average judge 

to lead him not to hold the balance nice, clear and 

true.” Id. at 2263-64.

Both the majority and the dissent in Caperton

worried that the decision may be used to bring 

“Caperton motions” in multiple other cases where a 

judge sits on a case involving a campaign supporter. 

 

Coal Co. Inc., 129 S.Ct. 2252 (2009) (No. 08-22), 2008 WL 

3165832.
19

See id. at 2265 (J. Kennedy), 2272 (C.J. Roberts, 

dissenting). However, the majority argued that the 

Caperton fact pattern was an exceptional and extreme one, not likely to be seen again because in that 

case just one individual had spent more than $3 

million on a single campaign. Id. at 2265. 

If corporate treasury spending were unleashed on 

judicial campaigns, it would inevitably escalate the 

cost and controversy of judicial elections. There is no 

reason to doubt that, in a regime lacking the regulations permitted by Austin and McConnell, corporations with their “immense aggregations of wealth”

would make expenditures of Caperton magnitude 

more commonplace in judicial elections-causing a 

spike in legitimate Caperton recusal and due process 

motions. And, as other groups felt pressure to match 

this corporate treasury spending, these issues would 

only snowball. Relying so much on the due process 

limitations articulated in Caperton would be highly 

risky, since that decision was not intended to 

supplant an overarching framework of state regulation designed to preserve the integrity of the judiciary amid a rising tide of campaign expenditures. 
20

CONCLUSION

Overruling this Court’s well-reasoned and longstanding precedents in Austin and McConnell could 

dramatically skew the future course of the judiciary 

in America. Courts can only be impartial if they are 

independent. To ensure due process, judges must be 

able to make decisions without looking over their 

shoulders at wealthy donors whose cases they must 

decide. Austin and McConnell should not be overruled.

Respectfully submitted,

* Counsel of Record

July 31, 2009

JAMES E. SCARBORO *

JESSICA A. SHOEMAKER 

ARNOLD & PORTER LLP

370 17th Street, Suite 4500

Denver, Colorado 80202

(303) 863-1000

Counsel for Amici Curiae
1a

APPENDIX

LIST OF AMICI CURIAE

Justice at Stake is a non-partisan campaign of 

more than 50 organizations working to keep courts 

fair and impartial. Justice at Stake Campaign partners educate the public and work for reforms to keep 

special interest pressure out of the courtroom.1

The American Judicature Society works to maintain the independence and integrity of the courts and 

increase public understanding of the justice system. 

Founded in 1913, the society is a non-partisan 

organization with a national membership of judges, 

lawyers and other citizens interested in the administration of justice. Its mission is to secure and promote an independent and qualified judiciary and fair 

system of justice.

The Center for Governmental Studies (CGS), a 

non-profit, non-partisan organization, helps civic organizations, decision-makers and the media to strengthen democracy and improve government processes 

by providing rigorous research, nonpartisan analysis,

strategic consulting and innovative media models of

public information and civic engagement. CGS has 

issued two reports on judicial campaign financing, 

one concerning Los Angeles County’s judicial elections and one regarding North Carolina’s judicial 

public campaign financing program.

 1 The arguments expressed in this brief do not necessarily 

express the opinion of every Justice at Stake partner or board 

member. Members of Justice at Stake’s board of directors who 

are sitting judges did not participate in the formulation or 

approval of this brief.
2a

The Citizen Advocacy Center is a non-profit community legal organization dedicated to building 

democracy by strengthening the citizenry’s capacities,

resources, and institutions for self-governance. Since 

1994, Citizen Advocacy Center community lawyers 

have empowered the citizenry to be active participants in the democratic process as well as protected 

the rights of the citizenry to ensure such participation is meaningful. 

Common Cause is one of the nation’s oldest and 

largest citizen advocacy organizations, with 

organizations in 35 states, and nearly 400,000 

members and activists around the country. Common 

Cause is a strong proponent of fair and impartial 

judiciary, and supports reform initiatives for judicial 

election, selection and retention that eliminate the 

undue influence of special interest money on the 

judiciary. Common Cause seeks such reforms 

through state chapters in many states, including 

Georgia, Ohio, Pennsylvania, and Wisconsin.

The Colorado Judicial Institute is a 29-year old 

non-partisan, non-profit organization that seeks to 

preserve and enhance the independence and excellence of Colorado courts, further public understanding of the Colorado judicial system, and ensure that 

the courts meet the needs of the people.

Democracy North Carolina is a non-partisan organization that uses research, organizing, coalitionbuilding, and public education to enhance the vitality 

of democracy in North Carolina and help fulfill the 

promise of “one person, one vote.” It was a major 

leader in the successful effort to make North Carolina 

the first state in the nation with a robust public 

financing program for candidates in statewide judicial elections.
3a

The Illinois Campaign for Political Reform is a nonprofit, non-partisan public interest group that conducts research and advocates reforms to promote 

public participation, address the role of money in 

politics and encourage integrity, accountability and 

transparency in government.

Justice for All is the Arizona counterpart to Justice 

at Stake. Justice for All is dedicated to the preservation of an independent, impartial judiciary and the 

merit selection/retention system of appointing and 

retaining judges.

The Michigan Campaign Finance Network conducts research and provides public education on 

money in Michigan politics. It has published analysis 

of the last five Michigan Supreme Court election 

campaigns.

The North Carolina Center for Voter Education 

is dedicated to improving the quality and responsiveness of elections through public education and 

research. The Center is a non-partisan, non-profit 

organization based in Raleigh, North Carolina.

Ohio Citizen Action was founded in 1975 and has 

80,0000 members. Ohio Citizen Action’s Money in 

Politics Project has identified sources of campaign 

contributions and the economic and policy interests of 

donors.

Pennsylvanians for Modern Courts is a statewide 

non-profit, non-partisan organization founded to improve and strengthen the justice system in Pennsylvania by reforming the judicial selection process; 

improving court administration, court financing and 

the jury system; eliminating bias; and assisting citizens in navigating the courts and the justice system, 

whether as litigants, jurors, or witnesses. The organ-
4a

ization’s mission is to ensure that Pennsylvania has 

fair and impartial courts that serve all Pennsylvanians.

Public Campaign is a non-profit, non-partisan organization dedicated to campaign reform that dramatically reduces the role of special interest money 

in American politics. Public Campaign works for 

reform with a broad range of organizations, including 

local community groups and national organizations 

whose members are not fairly represented under the 

current campaign finance system. 

TakeAction Minnesota’s mission is to unite the 

power of diverse individuals, communities, and organizations in active grassroots democracy that 

builds social, racial, and economic justice.

Texans for Public Justice is a Texas-based nonprofit research and advocacy organization established 

in 1997. One of the organization’s missions is to 

research the role of campaign contributions in the 

Texas judicial system and to promote a range of judicial reforms.

Transparency International-USA works in the U.S. 

and abroad to combat corruption and promote transparency and integrity in government, business and 

development assistance.

The Wisconsin Democracy Campaign is a nonpartisan watchdog group that tracks the money in 

state politics and advocates for campaign finance 

reform and other reforms promoting clean, open and 

honest government.

The Chicago Council of Lawyers is a public interest 

bar association which strives for the fair and effective 

administration of justice.
5a

Chicago Appleseed is a research and advocacy organization which promotes social justice and government effectiveness by identifying injustice in the 

community, investigating its causes, and finding 

effective solutions. 

The Honorable Norman S. Fletcher was appointed 

to the Supreme Court of Georgia in 1989 and served 

as Chief Justice from 2001-2005.