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Guest Column

The Hidden Risk of Judicial Campaign Contributions

Before you contribute the maximum to a judicial candidate, know that you’ve likely shot yourself in the foot, if you appear as a litigant before that person

By James C. Nelson

The 2021 and 2023 sessions of Montana’s Legislature perpetrated a full-on war against Montana’s courts and judiciary. Dozens of anti-court/anti-judiciary bills were offered in these last two legislative sessions.  

The objective of these attacks? Demonize and marginalize Montana’s courts, to the end of frustrating their constitutional duty to serve as a check and balance on the legislative and executive branches and their ability to function as a separate and co-equal branch of government. Chief among these functions is that of judicial review – i.e. that the actions of the the executive and legislative branches of government are subject to review and possible invalidation by the judiciary; a power that allows the courts to ensure that the other branches of government abide by the Constitution. 

One of these bills, SB 201, introduced by Senator Greg Hertz, passed and was signed into law. It was titled: “An Act revising judicial recusal laws when a lawyer or party to a proceeding has made campaign contributions” to a candidate for judicial office.

Pursuant to this law any party to a proceeding may request a judge sitting on the case be recused (i.e., disqualified from participating in the case) if the judge has received the maximum allowable campaign contribution in an election held within the previous six years, from an opposing party or lawyer or the lawyer’s law firm representing the opposing party, or where those same persons or firms have made a contribution ($10k for supreme court justices; $5k for other judges) to a political action committee (PAC) or an entity engaged in independent expenditures that supported the judge or opposed his or her opponent, again, in an election within the previous six years.

There was, and is, no evidence that these sort contributions have ever actually influenced any judge’s vote in any particular case, in any class of cases, or against any class of litigants.  In fact, such a contribution would effectively amount to the crime of bribery (§ 45-7-701, MCA).

To that point, the bald irony – and hypocrisy – of this attack on the judiciary is the fact that persons, corporations, and special interests make generous contributions to legislative and executive branch candidates to actually influence their votes on matters of interest to the contributor. Indeed, legislators have no problem whatsoever in voting the money and then proudly proclaiming their representation of their constituent’s interests.

Worse, there are some constitutional problems with this legislation.  For one, the U.S. Supreme Court’s decisions in the Citizens United and predecessor cases, equated speech and money; money = speech. So, if I want to give the statutory maximum campaign contribution to judicial candidate X, and she is elected but forced to recuse herself in a case in which I am a litigant, my First Amendment right of political free speech has been nullified because I “spoke” through my money contribution.

Additionally, under Article II, section 16 of Montana’s Constitution, I have a right of access to the courts and a speedy remedy afforded for injury to my person, property, or character, with the further proviso that this right and justice “shall be administered without sale, denial, or delay.” Again, my exercise of this right is denied to the extent that judicial candidate (subsequently elected) for whom I made a campaign contribution is disqualified from sitting on my case – even though I supported the judge because I believed he was the most fair, impartial, and independent candidate; i.e., precisely the sort of jurist I want sitting on my case.

Bottom line: before you contribute the maximum to a judicial candidate, know that you’ve likely shot yourself in the foot, if you appear as a litigant before that person. 

In fact, you may be better off sending your money to the opposing candidate; if you draw him or her, you’ve got a solid right to demand recusal.

James C. Nelson is a retired Montana Supreme Court Justice. He lives in Helena.

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