A Project of The Annenberg Public Policy Center

When $3 Million is Too Much


The Supreme Court’s June 8 decision in Caperton v. Massey established that there is such a thing as too much money, at least when it comes to campaign support for a judge who is hearing a case involving the supporter. And $3 million is definitely over the line, according to the majority opinion by Justice Anthony Kennedy in the landmark 5-4 decision.

Excessive campaign contributions to or in support of a judicial candidate can subvert the due process clause of the Constitution, Kennedy wrote. There’s “a serious risk of actual bias” when a party in a case “had a significant and disproportionate influence” in electing a judge when that party was involved in a case that was likely to soon be before the judge, he said.

The case involved West Virginia Supreme Court Justice Brent Benjamin, who was elected with the help of $3 million in expenditures by Don Blankenship, the chief executive of Massey Energy. At the time, Massey had lost a jury trial that would have forced the company to pay $50 million to several small coal operations who alleged fraud on Massey’s part. Blankenship appealed the case to the state Supreme Court, and meanwhile spent heavily to help defeat one of its justices, Warren McGraw, in his 2004 reelection bid. Most of the money went for ads attacking the incumbent, a Democrat, and it was a far greater sum than that spent by Benjamin, the challenger and a Republican, or all his other supporters put together.

Benjamin defeated McGraw in the race, going on to rule twice that the judgment against Massey should be overturned, and rejecting motions seeking his disqualification based on the money spent by Blankenship. But Benjamin, according to Kennedy’s majority opinion, should have recused himself. (A number of documents from the case have been posted by the Justice at Stake Campaign.)

Kennedy said the West Virginia case was “extraordinary.” But the four dissenting justices — Antonin Scalia, John Roberts, Clarence Thomas and Samuel Alito — said the decision opens the courts to a barrage of litigation by parties attempting to stretch the finding to their circumstances. “How much money is too much?” is one of many questions that Roberts, writing for the dissenters, said courts will now have to determine.

It remains to be seen whether the decision will curb the growing role of money and advertising in state Supreme Court races, which was the subject of a 2007 conference sponsored by FactCheck.org at which Justice Benjamin, along with Alabama Supreme Court Justice Sue Bell Cobb, appeared.