That’s too much!

I took my family to Los Angeles a few years ago because my wife and daughter were obsessed with being in the studio audience of “The Price Is Right” game show, then starring Bob Barker.

The sights and sounds of Hollywood after dark, as we passed a nine-hour evening on the sidewalk outside the studio, waiting for the gates to open at 6 a.m. to get front-row seats, is a story in itself.

One of the games played on TPIR is “That’s Too Much!” The game involves a new car and a series of cards with concealed numbers, each higher than the last.

As each number is revealed in sequence, the contestant decides whether it matches the price of the car. If the contestant thinks the number is too low, another number is revealed.

Here’s how the game is won: when the contestant has a hunch that the number on a card exceeds the price of the car, they’re encouraged to scream at the top of their lungs, “That’s too much!”

If the contestant has stopped at the first price that exceeds the price of the car, they get to drive it home and figure out how to pay the tax bill on their new ride.

Yesterday, a five-justice majority of the U.S. Supreme Court ruled that a plaintiff was deprived of the constitutional right to a fair trial when the state-court judge hearing the case refused to step aside, even though the defendant company’s owner contributed $3 million to elect the judge.

Writing for the majority in Caperton v. Massey, Justice Anthony Kennedy said:

Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case.

And an easy case in which to cry out, “That’s Too Much!”

But in most cases, how do you know how much is too much when it comes to judicial campaign contributions?

When should a litigant yell, “That’s Too Much!”

From Caperton, we know that when $3 million is traceable to a single donor-litigant, “That’s Too Much!”

But what about in Michigan, where, according to the Michigan Campaign Finance Network, state campaign finance laws don’t always require disclosure of who is paying for the election ads? From the MCFN:

The U.S. Supreme Court noted that the Caperton case was extreme, but “because the States may have codes with more rigorous recusal standards than due process requires, most recusal disputes will be resolved without resort to the Constitution, making the constitutional standard’s application rare.”

This decision underscores the wisdom of the Michigan Supreme Court’s ongoing effort to establish workable recusal standards for itself that will consider extreme campaign spending of the sort that has become a regular feature of contemporary Michigan Supreme Court election campaigns.

Highlighting that last point is the MCFN’s recent report that documented campaign spending in the November 2008 election.

Of the $7.5 million spent for the Supreme Court campaign, over half the money is not disclosed in campaign finance reports. The money spent by the Michigan Chamber of Commerce and the Democratic and Republican Parties for candidate-focused “issue” advertising is entirely off the books.

So, according to the MCFN, recusal guidelines from the Michigan Supreme Court need to be augmented by some reform legislation.

[R]igorous recusal standards for the Michigan Supreme Court will be undermined by the failure of Michigan’s Campaign Finance Act to require disclosure of contributors to organizations such as the Michigan Chamber of Commerce and the state’s political parties that sponsor candidate-focused “issue” advertisements that seek to define judicial candidates’ records, qualifications and suitability for office without explicitly exhorting a vote for or against a candidate. Without knowing who contributes to the committees that sponsor candidate-focused issue ads, it will not be clear when a motion for recusal rightfully should be filed.

The decision in the Caperton case provides an important buttress for citizens’ due process rights to an impartial judicial hearing. However, Michigan legislators must address the shortcomings in our campaign finance disclosure regulations if this protection is to have its full effect.

That’s not too much to ask from the lawmakers in Lansing.


2 thoughts on “That’s too much!

  1. I don’t think it’s too much to ask for more transparency in campaign funding. Putting a dollar amount on campaign contributions causing bias may not be an accurate way to determine recusal, as some judges have suggested, because not all campaign contributions are measured in dollars but in percentages. In other words, what if the campaign is a $500,000.00 campaign in a small town, but the campaign contributions from one area consist of almost 20% of the campaign funding? That’s often the case in small towns in Michigan, and even with a smaller dollar amount, the campaign contributions could still contribute in biased decision-making.

  2. Pingback: The mathematics of ‘appearance of impropriety’ « The Michigan Lawyer

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