Campaign finance laws were meant as a way to make elections fairer, but the reality is that incumbents continue to enjoy numerous advantages over challengers.
It takes an enormous amount of money to unseat an officeholder. Unless a challenger outspends an incumbent, he has less of a chance of winning the election. As a practical matter campaign finance laws provide significant incumbent protection.
By limiting the amount of money that an individual can spend in support of a candidate, campaign finance reform laws also can infringe upon our constitutionally guaranteed right to free speech. To speak freely and be heard by the voters during an election campaign, a candidate and his supporters must be able to spend freely on flyers, bumper stickers, yard signs, billboards, direct mail, and print and broadcast media.
Campaign contributors naturally are drawn to candidates who share their views. That's how politics works. This is true for all elected officials be they executives, legislators or judges.
Last month, the Wisconsin Supreme Court recognized this reality when it decided that state justices do not have to recuse themselves in cases involving their campaign contributors. Justice Patience Roggensack said the decision "will send a message that making lawful contributions is not a dishonorable thing to do and it's not a dishonorable thing to receive."
Last year here in West Virginia, current Chief Justice Brent Benjamin was forced to recuse himself from a case involving Massey Energy because CEO Don Blankenship had backed him in a 2004 election victory over incumbent Justice Warren McGraw (brother of State Attorney General Darrell McGraw). It took several million dollars to unseat McGraw, and much of it came from Blankenship.
Like campaign finance laws, recusal rules also can have the opposite effect of their desired purpose. By impeding the ability of prospective judges to raise the funds needed to win an election and by encouraging certain attorneys to seek grounds for recusal, such laws can make our court system less fair.
If we trust ourselves, we should trust our judges. After all, we're the ones who elected them to office in the first place.