Ever since the Citizens United ruling, there has been an increased scrutiny of judges and the election process. We need the best laws and the best justice that democracy can dispense, not the best laws and the best justice that money can buy.

Justice Kennedy recognized the corrosive influence of political contributions in justice when he wrote the majority opinion in Caperton v Massey:

We conclude that there is a serious risk of actual bias - based on objective and reasonable perceptions - when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent.

Unlike Citizens United v. FEC, that statement is very narrowly crafted, but it does point to dangerous influences in the justice system. Likewise, many leaders have narrowly crafted their critiques of the Citizens United ruling, questioning the judgment, but not the credibility of the U.S. Supreme court. Nonetheless, many are now much more skeptical of the credibility of the U.S. Supreme Court.

In a recent conference call with bloggers, a noted Democratic strategist suggested that the impact of Citizens United might be less significant than people are fearing. He suggested that already the airwaves are saturated with campaign advertisements in the days leading up to an election. He ignores some simple aspects about the effect of Citizens United on campaign advertising. First, with more demand of these advertising slots, the law of supply and demand suggests the cost of these advertising slots will increase, making it all the more a bidding game to the candidate and the independent corporations with the most money. In addition, corporations will now be able to go directly after candidates, instead of running their ‘issues campaigns’. More significant, however, is not the amount of advertisements run, but the pressure that corporations will be able to place on candidates; “If you don’t vote for my bill, I will flood the airwaves with advertisements against you.” It would seem that this potential threat creates “a serious risk of actual bias”, to use Kennedy’s words. Perhaps, if corporations are allowed to have “significant and disproportionate influence” on all congressional campaigns, all of Congress needs to recuse itself from any laws giving corporations what they are lobbying for.

Yet the concern is not only at the national level. This ruling could have even greater effect in states where it would be less expensive to buy legislators or judges. In another conference call, a Republican Strategist who supports the Fair Elections Now Act recounted a story of a meeting of the appointments chief for a governor in Texas where there are no campaign contribution limits, with the appointments chief for a governor in Wisconsin which has strict campaign contribution limits. In trying to understand the practical implications of the law, the Texas appointments chief asked, if the amount that a person can contribute to a campaign is limited, how do you know who to appoint?

Here in Connecticut, we are now running into this issue. As Gov. Rell, a Governor elected before the Citizens Election Program was put in place, winds down her final term, there is talk that she is looking to appoint twelve new judges. Editorials in the Norwich Bulletin and the Hartford Courant question the timing of these patronage jobs. Their concern is that as the Judicial Branch is facing shortfalls and as result closing courts and law libraries, it is the wrong time to spend a lot of money on new judges.

I would suggest that it is always the wrong time to make patronage appointments and that this illustrates yet again, how the Citizens Election Program saves the people of Connecticut money. While we still have a Governor who was elected under the old system, our state legislator was elected under the Citizens Election Program. They should oppose any judicial nominations that raise reasonable perceptions that the judges are being appointed out of patronage instead of out of need. While they are at it, they need to get on the stick and make sure that the Citizens Election Program is fully funded and improved to meet the legal concerns raised about it.

(Cross posted at MyLeftNutmeg.)