You Be the Judge

The Texas legal community feared that two recent U.S. Supreme Court opinions would have far-reaching effects on judicial elections here. But the state’s current campaign finance laws may adequately address the issues presented by both cases, according to witnesses at a joint meeting of the House judiciary and elections committees on Thursday.

In Caperton v. Massey — in which the CEO of a West Virginia coal company spent over $3 million to elect a judge who would hear a case pending against him — the court ruled that big donations from parties with business before the court pose “a serious risk” to the impartiality of judges. Citizens United v. Federal Elections Commission upended federal and state law, which each placed restrictions on how much corporations and unions can spend in campaigns. Though Citizens United left intact restrictions on direct donations to candidates, many believe it paves the way for more money to make its way into judicial elections. (Read the Texas Ethics Commission’s advisory opinion on Citizens United here.)

Though the decisions “present challenges, because they pull in opposite directions,” according to Bill Boyce, a justice on Houston’s 14th Court of Appeals, the Legislature has already done much of the “heavy lifting” in both of those cases with the Judicial Campaign Fairness Act and its existing recusal standards. Boyce, who serves on the Texas Judicial Council, which gives policy recommendations to the Texas Supreme Court and the Legislature, testified at Thursday’s hearing.

Caperton, handed down last summer, held that campaign contributions endanger judicial neutrality and could serve as grounds for recusal under the due process clause of the U.S. Constitution. Whether a donation requires a judge to recuse himself depends on a series of factors, the court held, such as the amount of the donation relative to the total money contributed to the judge, how much judges spent during the campaign, and the closeness of the election. Because the court didn’t provide a bright-line rule, states have considerable latitude in deciding just what circumstances demand recusal under the Caperton framework. In Citizens United, the court ruled in January that corporations and unions can spend as much as they want in support or opposition of a candidate — as long as they don’t coordinate those efforts with campaigns or other third-party groups that align with their political interests.

Attorney Lee Parsley, who testified before the committee on behalf of the Texas Civil Justice League, a legal reform group, said he believed Caperton could sufficiently limit corporate influence in judicial elections. Even though Citizens United removed limitations on independent expenditures, there’s “a fair chance [corporations] aren’t going to get any benefit out of that money” because of Caperton.

"You may have purchased a seat on a court, but the judge that sits in that seat may therefore have recuse himself because of your efforts to get him there,” he said. “So I think it's possible that the two of them taken together may end up being a discouragement to corporate expenditures of this sort."

The Legislature, along with the Texas Supreme Court — which has rule-making authority over the judiciary — will be responsible for ironing out the implications of the decisions. According to Thursday’s testimony, that will likely happen within the bounds of the state’s current recusal standards and the Judicial Campaign Fairness Act of 1995, which provides voluntary caps on campaign contributions and expenditures in judicial elections. Most candidates comply with the caps, both because their opponents could shame them into doing so and because the law requires them to print disclaimers on campaign materials if they disregard the limits.

“Texas comes to this particular conversation far ahead of many other states in terms of having established procedures in place, stout reporting requirements and a culture where the participants in the electoral process understand that there are limits …  and work hard to comply with them,” Boyce said.

Texas law already requires the recusal of judges if their impartiality is questioned, and Boyce said the circumstances the high court found most troubling don’t exist in Texas. If a party to a case asks for a recusal, the judge can’t deny the request. Rather, he or she can only grant the motion or ask an administrative judge to decide it. Still, state Rep. Todd Smith, R-Bedford, who chairs the Elections Committee, expressed concern over whether the Citizens United case would allow corporations, under current disclosure requirements, to invest millions of dollars attacking a candidate anonymously. Boyce told Smith that the Ethics Commission was currently looking at how disclosure requirements would apply to corporations under the January decision and that he thought that was an area that “needs attention.”

Texas saw its first corporate ad — which also happened to be the first in the nation — in March. It appeared in East Texas newspapers and attacked the conservative credentials of Democrat-turned-Republican Chuck Hopson, who was facing two challengers in the GOP primary. The ad was paid for by a real estate company whose president, Larry Durrett, was an old political rival of Hopson’s. At the time, Durrett explained to The Texas Tribune why he used corporate money: “You take the money out of the pocket that's got some money in there.”