On the New Yorker blog Jeffrey Toobin warns that it is the low profile races for State Supreme Court that are the ones most at risk from a tidal wave of corporate money.
Bad Judgment
The basic ruling in yesterday’s five-to-four Supreme Court decision was straightforward and, in many ways, predictable. Chief Justice John G. Roberts, Jr., and his four conservative colleagues almost invariably rule in favor of corporate interests, and the Citizens United case was no exception. The Court ruled that corporations (and labor unions and other organizations) have the right, under the First Amendment, to participate in political campaigns by spending as much money as they want on behalf of political candidates. In other words, companies can produce commercials and buy time to support or oppose candidates for office.
Two thoughts. First, Republicans will benefit, of course. Corporations have vastly more money than unions, and corporations by and large prefer to support the G.O.P. But the spectre of Exxon buying time to support Barack Obama’s opponent in 2012 seems unlikely to me. Presidential campaigns are high-profile and generally well-funded; Exxon (or its ilk) would probably not make much difference—and likely draw a consumer boycott with a controversial choice.
The much bigger implication of the decision is likely to come in judicial elections. In the states that elect judges (about two-thirds of them), most voters pay relatively little attention to the races, but the contests, especially for the state supreme courts, tend to be vicious and expensive. Corporate interests often have a huge stake in the outcome, because most personal-injury lawsuits and other civil cases are handled at the state level. The whole notion of electing judges is tawdry and awful; Justice Sandra Day O’Connor has devoted a great deal of energy, during her retirement from the Supreme Court, to urging states to move to appointive systems. Corporate freedom to dump untold amounts of money into these races will make bad systems worse.
These are the races that most voters know little about. Faced with their lack of background knowledge many voters (who aren't legal professionals) simply skip voting in these races at all. A tsunami of corporate money pouring into negative advertising would be a game changer in low profile state races.
Toobin points to a movement trying to address the opening state judicial elections present to unbridled by corporate spending, by putting those decisions beyond the reach of corporate campaign money.
Effort Begun to End Voting for Judges
A group of judges, political officials and lawyers, led by the retired Supreme Court Justice Sandra Day O’Connor, has begun a campaign to persuade states to choose judges on the basis of merit, rather than their ability to win an election.
Merit systems — like the one that appointed Justice Kourlis to Colorado’s Supreme Court, where she served from 1995 to 2006 — generally involve a selection commission and regular "retention" elections in which voters can decide whether to keep their judges in power. Many states also have separate panels that report on judicial performance so that voters can go to the polls armed with information.
This Merit System preserves voter input while improving the quality of judges.
This call to action comes from the Institute for the Advancement of the American Legal System:
The debate over how America chooses its judges has escalated in the 21st century. Thirty-three states use direct elections to choose some or all of their judges. Many of these election campaigns are characterized by unprecedented campaign spending and sensational advertising.
To see the most vulnerable nooks and crannies our democratic system offers to opportunistic corporate campaign spending we need to lower our collective gaze from Washington D.C. to state races including the unglamorous judicial races.