National — and even legal — media coverage of the upcoming Supreme Court case Caperton v. A. T. Massey Coal is often superficial and misleading. Most of the articles paint the issue as a broad case of defining a standard for recusal due to contributions to judicial campaigns, failing to distinguish between contributions to independent groups or direct campaign contributions. There hasn’t been a single article in the recent crop of argument preview stories [the argument is set for March 3] which specifically mentioned the free speech consequences of requiring recusal based on contributions to or the spending of an independent group in a judicial election.
Here’s a round-up of the recent coverage:
Wall Street Journal’s Law Blog; Feb. 18
The Journal’s Law Blog’s first paragraph is misleading, but at least they eventually report that the contributions were "indirect," which is not really as specific (or descriptive) as what they actually were: independent:
[Andrew] Frey will represent Massey, a West Virginia coal company that has been accused, in effect, of buying a state Supreme Court justice through campaign donations while its case was pending before that court.
On March 3, the U.S. Supreme Court is set to hear the case, about whether the due process clause required a justice, Brent D. Benjamin – whose campaign received indirect support of more than $3 million from Massey CEO Blankenship but refused to disqualify himself from cases involving Massey – to step aside.
USA Today; Feb. 17
The nation’s largest newspaper paints a sinister picture in the first paragraph of the story, and adds a misleading statistic to boost their hyperbolic narrative:
The corporation’s CEO then pumps enough campaign money into a judicial election to get a new judge on the state supreme court. During an appeal, that judge casts a critical vote siding with the corporation – and reversing the resident’s victory.
More than 90% of the 1,027 adults surveyed said judges should be removed from a case if it involves an individual or group that contributed to the judge’s election campaign.
It’s not until the 16th paragraph that USA Today reveals the details:
Benjamin said the big money that helped get him elected did not go to him directly. It was sent to an independent campaign group that spent millions of dollars to unseat McGraw.
Legal Times ($); Feb. 18
Legal Times, which should know better, muddies the issue in its subscription-only write up of the lawyers arguing the case. Legal Times asserts that the main question in the case is over whether a "campaign" donation is so large as to require recusal, when the question is clearly whether a large independent donation is sufficient to require recusal:
So they are asking the Court to lay down a constitutional rule to define when a campaign donation is so big that the judge who receives it must recuse.
In the case the justices will hear, the CEO of Massey Energy spent $3 million in 2004 to support Brent Benjamin for a seat on the West Virginia Supreme Court of Appeals, the state’s highest court. Benjamin won and refused to recuse when the court considered the appeal of a $50 million fraud verdict against Massey. Benjamin cast the deciding vote in a 3-2 decision overturning the verdict.
New York Times; Feb. 14
The most accurate portrayal of the contributions comes from the New York Times [yet there’s still no discussion of the impossibility of crafting a recusal standard for independent spending without trampling on free speech rights]:
In 2004, he spent $3 million on tough advertisements attacking a justice of the State Supreme Court who was seeking re-election.
His direct contribution to the Benjamin campaign was only $1,000, although that is the maximum allowed by law, and he spent most of the $3 million, paid from his own pocket, on television advertisements aimed at defeating the incumbent justice, Warren R. McGraw.
Legal Times‘ story explicitly focuses on how defending Massey in this case is the "politically incorrect" position, and the vast majority of these media stories paint Massey in a negative light and go out of their way to paint an incredibly sinister portrayal of what occurred. Massey may be an unscrupulous corporate actor who plays hardball in business and politics, but that’s not what the issue is about. It’s about whether independent political speech in campaigns is somehow "corrupting" to judicial elections and should be penalized.
In every media account, there’s simply no explanation or defense of what such a standard for recusal would be. In the Center for Competitive Politics amicus brief in this case, we argue that a recusal standard based on independent involvement in a judicial election is unworkable and detrimental to the First Amendment right of free speech. A judge has no control over the spending of an independent group.
Beyond that, imagine the potential for gaming the system. If an individual or organization expects to find themselves before a state supreme court in cases in which they have a large financial interest, they could just make relatively large contributions to judges – or independent causes expected to support such judges – who they expect to disagree with their position. There’s no credible way to craft a workable recusal standard, a point most of the media narratives completely gloss over in their zeal to highlight the tabloid nature of this West Virginia saga.