by Euticha Hawkins
Like twenty-two other states, Arkansas selects its supreme court justices via popular election. The role of money in high court elections has always been an uncomfortable topic, but the specter of Citizens United threatens to transform this state of discomfort into one of true alarm. Although Arkansas had no express limits on corporate election expenditures before Citizens United, the decision can only embolden corporations seeking to inject more money in Arkansas’s political process.
Arkansas has an upcoming vacancy on its state supreme court, and Court of Appeals Judge Rhonda Wood is running unopposed for the seat. Judge Wood, who appears both conservative and highly qualified, has already garnered the support of the State Chamber of Commerce. On July 8, 2013, the Chamber’s CEO, Randy Zook, stated, “Businesses across Arkansas would benefit from the experience and judicial temperament that Judge Wood would bring to the Supreme Court. We look forward to supporting her candidacy and helping ensure her election as one of the next justices on the Arkansas Supreme Court.” On the same day, Judge Wood acknowledged that she was “appreciative and humble” to receive the Chamber’s endorsement.
As Max Brantley of the Arkansas Times noted, the Chamber’s endorsement occurred early: the filing period for the race does not begin until February 24, 2014, and the election itself does not occur until May 20, 2014. Brantley suggests that the influence of the Chamber’s “early money” may deter challengers from coming forward – especially challengers who lack either deep pockets or corresponding corporate allies. Although Brantley’s tone is unabashedly partisan, it is at least plausible that Citizens United could have the effect of making early corporate endorsements more effective at deterring potential challengers. Such endorsements would exert all the influence of money without the need for actual corporate expenditure.
In any event, what the early endorsement makes clear is that any challenger who comes forward in the race must be willing to combat the financial clout of the Arkansas Chamber of Commerce.
Should a challenger arise, corporate spending on both sides may determine the tone of the race. Judicial candidates, while generally discreet, cannot control the tone of ads ran by corporations, labor unions, or other outside groups on their behalf. Earlier this month, the Brennan Center published a study on state supreme court judicial races in the wake of Citizens United. The study noted that state supreme court elections in 2011-12 “seemed alarmingly indistinguishable from ordinary political campaigns – featuring everything from super PACs and mudslinging attack ads to millions of dollars of candidate fundraising and independent spending.” Some of the attacks ads depicted in the study demean judicial candidates for ordinary legal work done on behalf of criminal defendants, and inject wedge issues into otherwise controlled races.
Many Arkansans would be unwilling to see the state supreme court race degenerate in such a political fashion. What is at stake is the independence of the judiciary. Judges elected in an environment of unlimited corporate spending may feel indebted to their corporate patrons. Even if judges do not succumb to corruption – and we hope they do not – the mere appearance of corruption threatens public confidence in the courts. As David Stewart (Washington County District Court judge) put it, Citizens United is problematic to the judiciary in ways not applicable to the political branches, because the judiciary must serve as neutral arbiter. The independence of the judiciary, once lost, would be tremendously difficult to regain.
In Caperton v. A.T. Massey Coal Co., the Court acknowledged that corporate contributions in state supreme court elections could lead to corruption or the appearance of corruption. In spite of that earlier decision, the Court did not exclude the judicial branch from the reach of Citizens United. Perhaps the Court of the future will find a compelling state interest in regulating outside expenditures in high court judicial elections. In the meantime, the race continues.