Document Type

Brief

Publication Date

2-22-2011

Abstract

Amici states confront significant issues of citizen confidence in both state and national governments. We wish to share our view that public financing of state elections should remain available as a tool to restore public confidence.

While specific sources of discontent vary from state to state, at the root of the problem is a sense of powerlessness among the citizenry, powerlessness in the face of large governments and other ever larger financial and business institutions. Whatever one may think of changes proposed by the Tea Party movement, its existence may be traced rather directly to the frustration of ordinary people concerning the sources of and responses to the recent financial crisis.

In Arizona, a number of well-documented cases of corruption in government spurred its citizenry to initiate this matching fund form of public financing to address a central source of public discontent. Such problems have not been unique to Arizona.

In Iowa and other states whose judiciary face one form of election or another, the courts may confront a similar lack of confidence. In states with elected judges, campaigns heavily financed by the plaintiffs’ bar on the one hand, and the defense bar, insurance companies and other large organizations with important business before the courts on the other, have surely eroded public confidence in the fundamental concept of equal justice before the law. See, e.g., Caperton v. A.T. Massey Coal Co., ___ U.S. ___, 129 S. Ct. 2252 (2009); John Grisham, The Appeal (2008).

Iowa is among the states with a nonpartisan, merit system of judicial selection and the justices of the Iowa Supreme Court stand for periodic retention elections. From the 1960s until 2010, no Iowa justice had been voted off the high court. Indeed, there had never been what one could consider a “campaign.” In 2010, all three justices standing for retention were ousted by a campaign with the latest versions of negative attack ads, financed by well over one million dollars, largely from non- Iowa sources. The response to the campaign by the organized bar and other citizens in support of the justices was clearly too little and too late. While Iowa’s judges do have the First Amendment right to speak out in support of their record, solicitation of funds to spend on such speech is not only troubling as a matter of judicial ethics, it can only further erode citizen confidence in equality before the law.

Whether Iowa will follow the lead of other states that provide public financing in judicial elections is unclear, but some form of it might well be considered an appropriate means of restoring confidence. Iowa and other states with concerns about judicial elections should retain some flexibility to generate constitutional solutions to these substantial problems. See cf. Deborah Goldberg, Brennan Center for Justice, Public Funding of Judicial Elections: Financing Campaigns for Fair and Impartial Courts (2002); American Bar Association, Report of the Commission on Public Financing of Judicial Campaigns (2002).

Beyond the problems of the current era and the specific issue of public financing for state elections, amici states are concerned for the larger implications for federalism presented here. This case plainly involves the citizens of a state addressing the basic structure of their government. If federalism means anything, it surely means the judgment of a state’s people about how they are to be governed ought to be heard and considered by the courts of our nation.

Comments

Amicus: Alexander, Professor Mark C.; Briffault, Professor Richard; Charles, Professor Guy-Uriel; Gardner, Professor James A.; Gerken, Professor Heather K.; Hill, Professor Frances R.; Kang, Professor Michael S.; Katz, Professor Ellen D.; Mayer, Professor Lloyd Hitoshi; McGeveran, Professor William; Nichol, Professor Gene R.; Ortiz, Professor Daniel R.; Overton, Professor Spencer A.; Pildes, Professor Richard H.; Tokaji, Professor Daniel P.

Download

Share

COinS