A Past and Future of Judicial Elections: The Case of Montana

I. INTRODUCTION Judicial elections are approaching their second century in the United States, and they are not going away anytime soon. After the rise of Jacksonian Democracy in the early nineteenth century, and popular calls for increased judicial independence from the political branches, most states hard-wired the election of judges into state constitutions. (1) Despite reform efforts that emerged in the twentieth century and continue today, states that hold judicial elections reliably reject alternative selection methods. Nearly ninety percent of state judges in the United States are subject to election. (2) Recent deregulation of campaigns and elections through successful constitutional challenges now has reached judicial campaigns and elections. Many of the legal and ethical constraints on judicial campaign speech and finance, once a realm of electoral exceptionalism respecting the distinct office of a judge, fell to these challenges alongside their political-campaign analogues. The remaining exceptions, which protect a core of judicial impartiality from due process violations, are inconsequential to most modern judicial campaigns. These campaigns quickly learned the political tactics of the Citizens United era, prompting a flood of attack ads financed by independent expenditures, some of which are not fully disclosed. (3) Meanwhile, state courts in general, and state supreme courts in particular, remain important players in increasingly polarized debates concerning state law and politics. One-party state legislatures and executive branches, encouraged by historically large legislative margins, (4) test state courts with contentious laws and constitutional questions. In states where a balance of power once encouraged political compromise, the losing party now may resort to litigation. The same moneyed interests that help set the legislative agenda also loom over state courts. Those judges and justices must decide the high-stakes and politically charged cases that follow, knowing their decisions may set the course for their next election campaigns. A moderate judge who does not line up neatly with moneyed interests on one side or the other risks electoral defeat. Case by case, issue by issue, term by term, the polarization of the political branches runs to the courts. This is the new normal in judicial elections. It follows the new normal in political elections of the Citizens United era. Judicial candidates seeking to interpret the laws are nearly as free to speak on legal and political issues as are the legislative candidates seeking to write the laws. Even in traditionally non partisan judicial elections, political parties may be as free to endorse judicial candidates as they are to endorse political candidates. Campaign-contribution laws limit donations to candidates' campaigns, judicial or political, but face renewed challenges. Corporations and unions are as free to spend unlimited amounts of shareholder and member funds on independent expenditures in judicial campaigns, just as they may in political campaigns. Contributors are free to choose their preferred levels of disclosure by selecting among candidate campaigns, super PACs, or less transparent vehicles. Careful contributors may enjoy significant influence in candidate campaigns--judicial or political--without triggering either a disqualifying conflict or even the obligation to identify themselves. Montana's 2014 election for one of two contested seats on the state supreme court exemplifies this new normal. In 2011, the Montana Supreme Court took a lonely stand against this state of affairs by attempting to distinguish Montana's campaigns, including judicial campaigns, from the presidential campaign addressed by the Supreme Court's decision in Citizens United. But that principled stand was short-lived, drawing a quick and brief rebuke from the Supreme Court. Despite state concerns about financial and outside influence on judicial campaigns that date back a century and a half, and their continued relevance to judicial politics today, the Supreme Court so far has refused to grapple with the implications of Citizens United for elected judges. …