Article Critique

Introduction 146

I. A Proposal To Restore Fairness And Impartiality To Elected

State Judiciaries 151

A. Why Enact This Proposal? 153

1. Congress' Role in Judicial Election Reform 155

II. The Supreme Court's Section 5 Jurisprudence 156

A. The Court's Section 5 Jurisprudence 156

1. Identify the Right 157

2. The Evidence of Harm Requirement 158

3. The Congruence and Proportionality Requirement 159

A. Egregiousness of the Harm versus the Proposed Remedy 160

B. Geographic and Time Limitations 161

C. State Action 162

D. Remedies 162

III. Imposing The Proposed Mandatory Disqualification Rule Is

A Lawful Use Of Congress' Section 5 Powers Under The

Fourteenth Amendment 163

A. Showing the Constitutional Right to a Fair and Impartial

Tribunal 164

1. The Right to a Fair and Impartial Tribunal 164

2. Campaign Contributions and the Right to a Fair and Impartial

Tribunal 168

A. Limited Recognition of the Due Process Problems Created by

Campaign Contributions at the State Level 169

B. Many States Fail to Recognize the Due Process Problems

Created By Campaign Contributions 170 [*146]

B. Showing Evidence of Harm 173

C. Showing Congruence and Proportionality 174

1. Showing Egregiousness of the Harm versus the Proposed

Remedy 175

2. Showing Geographic and Time Limitations 176

3. Showing State Action 176

4. Showing Inadequate Remedies 176

D. Congruence and Proportionality Satisfied 178

Conclusion178

Introduction

Speaking of the need to raise campaign funds for his judicial election campaign, Justice Paul E. Pfeifer of the Ohio Supreme Court recently said, "I never felt so much like a hooker down by the bus station in any race I've ever been in as I did in a judicial race." n2 Justice Kennedy, in his concurrence in New York State Board of Elections v. Lopez Torres had the same concerns as Justice Pfeifer, although he wrote more eloquently. Justice Kennedy opined that

when one considers that elections require candidates to conduct campaigns and to raise funds in a system designed to allow for competition among interest groups and political parties, the persisting question is whether that process is consistent with the perception and the reality of judicial independence and judicial excellence. The rule of law, which is a foundation of freedom, presupposes a functioning judiciary respected for its independence . . . and the absolute probity of its judges. And it may seem difficult to reconcile these aspirations with elections. If . . . the statutesfor electing judges do not produce both the perception and the reality of a system committed to the highest ideals of the law, they ought to be changed and to be changed now. n3

Reading between the lines, Justice Kennedy appears concerned that campaign contributions related to judicial elections has an influence on state judges. Although Justice Kennedy avoided saying outright whether he personally believed campaign contributions were corrupting state judiciar [*147] ies, the empirical data shows that elected judges are in fact failing to appear and be impartial.

Take, for example, what occurred behind the scenes in the Texaco, Inc. v. Pennzoil case. n4 In 1987, lead counsel for Pennzoil, two days after having the case assigned to Judge Anthony Farris, donated $ 10,000 to the judge's campaign for reelection. n5 Judge Farris refused to recuse himself and Pennzoil "seemed to be rewarded with an almost continuous stream of rulings in Pennzoil's favor." n6 When the case reached the highest court in Texas, on appeal, Pennzoil's lead counsel had donated $ 248,000 to the judges hearing the case--Texaco itself donated $ 190,000 total. n7 The court refused to hear the case and affirmed the damages totaling over $ 8 billion dollars. n8

Texaco, and cases like it, are the reason confidence in the elected state judiciary is low. On the one hand, if there is corruption, it appears blatant. On the other hand, even if no corruption is occurring, the current system undermines "the feeling, so important to a popular government, that justice has been done" by making it appear that judges are not impartial. n9 What the Texaco situation, and others like it, make apparent is that someone does not have to search long to find a way to gain influence over the judicial process.

Indeed, it seems that more and more special interest groups have taken note of this new avenue of influence. As Justice at Stake reports, in the 2006 judicial election cycle $ 34.4 million dollars was raised by candidates seeking state supreme court seats, the equivalent of more than 20 % of the money raised in the previous past four election cycles combined. n10 Breaking down the total amount of money donated by interest, the most significant campaign contributors were business interests, who donated 44 % of the money raised, and lawyers, who raised 21 % of the money contributed to judges. n11 Even trial court campaigns are becoming more intense. For example, in Madison County, Illinois, there was a $ 500,000 trial court campaign. n12 [*148]

As special interest groups funnel money into elected state judiciaries, the public and participants' perception of fairness and impartiality in the judiciary have sunk to extremely low levels. As mentioned above, 76 % of Americans believe that campaign contributions have "some influence" over judges' decisions. n13 Even members of the business community, the largest contributors to judicial campaigns, have concerns. According to a 2007 Zogby poll, 79 % of business leaders believe that campaign contributions influence judges' decisions. n14 Business leaders were concerned that campaign contributions were undermining the independence of the judiciary and democracy, 72 % being "very concerned" and 90 % being "somewhat concerned." n15 Also, 97 % of business leaders were of the opinion that "judges must recuse themselves from cases involving those who have contributed financially to their political campaigns." n16 In addition, over 26 % of judges nationwide believe that campaign contributions influence judicial decision making. n17 As a result, a majority of Americans believe that the current practice of judges presiding over the cases of their campaign contributors simply fails to create a fair and impartial system.

If special interest groups are allowed to get a stranglehold on state judiciaries the impact will be immense. As Professor Roy A. Schotland recounts, only eleven states do not pick their judges by election. n18 As for the rest:

in 19 states, some or all judges are appointed but then face 'retention' elections in which voters decide whether the judge continues on the bench or leaves; in 19 states (some of the 'retention' states, plus some others), some or all judges face contestable non-partisan elections, and in 16 states (again some overlap with the ones already noted), they face partisan elections. In all, 60 per cent of appellate judges and 80 per cent of trial judges at state level face contested elections and only 11 per cent face no elec

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tions. Especially in contested elections, but sometimes in retention elections, judges raise campaign funds. n19

Thus, of the 10,866 total appellate and general trial judges at the state level nationally, a majority of those judges are at risk for being influenced by contributions. n20 This is unacceptable because the Due Process Clause guarantees a fair and impartial tribunal. n21

Unfortunately, though, as Texaco becomes the norm, and campaign contributions continue to grow, it appears the vast majority of states and the judiciaries at all levels are apathetic to the due process problems raised by campaign contributions. Lower courts have shied away from finding a due process problem where a lawyer or litigant-campaign contributor has come before that court. n22 Indeed, the Supreme Court had a chance in 2006 to clear up the relationship between elected judges, the Due Process Clause, and contributions in Avery v. State Farm Mutual Automobile Insurance Company. n23 Yet, the Court denied certiorari and left the question open. n24

States are only just beginning to understand the pervasiveness of the problem. According to Bert Brandenburg, Executive Director of the Justice at Stake Campaign, reforming the current system is a long term project. n25 At this moment, lawmakers and the public are only just beginning to grasp the issues raised by special interest influence on the judiciary as demonstrated by reform efforts in North Carolina, New Mexico, Wisconsin, and Minnesota. n26 Unfortunately, as Brandenburg noted, "from a political standpoint, the political will to make change only exists in a minority of states." n27

Given the scale of the problem, and the lack of progress by the judiciary and the states, a radical change in strategy is called for, one that deserves serious consideration. If states and courts are failing to enforce the [*150] right to a fair and impartial tribunal, the only actor left with the ability to protect the right to a fair and impartial tribunal is Congress.

This Note proposes that Congress enact legislation forcing judges to recuse themselves should their major campaign contributors come before them in court, whether as litigants or lawyers. As Dean Burnett of the Idaho College of Law writes:

mandatory recusal . . . legitimates and strengthens judicial independence. It serves as a "safety net" for litigants and the public, protecting them against exercises of power by judges . . . who owe their judicial offices to political or economic forces that now seek preferred outcomes in specific cases, or by judges whose impartiality in particular cases may be reasonably questioned for any other reason. n28

However, although this Note advocates for congressionally mandated recusal reform, it should not be interpreted as excluding other possible reforms Congress could enact. Indeed, the analysis in this Note could be used to support other possible reforms as well.

That being said, Part I of this Note will describe a proposal for Congress to create a mandatory disqualification rule for elected state judges when campaign contributors have made excessive campaign contributions to a judge's election campaign and appear before that judge as a litigant or lawyer. Part I will also discuss the advantages of instituting a mandatory disqualification rule. Further, Part I discusses the benefits of a congressional solution. In Part II, since in order to enact this proposal, Congress would have to rely on its Section 5 powers under the Fourteenth Amendment, the Supreme Court's Section 5 jurisprudence is examined. In Part III, the mandatory disqualification proposal will be defended on legal grounds as a lawful exercise of Congress' power to enforce the Due Process Clause of the Fourteenth Amendment. n29 Ultimately, this Note will [*151] demonstrate that Congress can, if desired, play a role in reforming state judicial election processes.

I. A Proposal To Restore Fairness And Impartiality To Elected State Judiciaries

Stated simply, elected state judges are presiding over cases involving their major campaign contributors. In turn, this threatens the ability of litigants to receive a fair and impartial tribunal. Yet, as Professor Palmer observed, "you do not have to do away with elections and or even fund-raising to make a drastic improvement in the quality of justice in state courts . . . . If a judge has taken money from a litigant or lawyer . . . the judge has no business ruling on that person's case." n30 Congress should take Professor Palmer's advice.

In order to constitutionally protect the right to a fair and impartial tribunal, Congress should adopt the following language: n31

(1) "A judge shall disqualify himself or herself in any proceeding in which . . . . n32

(A) the judge knows or learns by means of a timely motion that a party, a party's lawyer, or the law firm of a party's lawyer [or an organization to which a party is a member or employee] n33 has within the previous [insert number] years

[*152]

made aggregate contributions to the judge's campaign in an amount that [is greater than $ [insert amount] for an individual or $ [insert amount] for an entity]. n34

(B) This provision is meant to be applicable wherever judges are subject to public election; specific amount and time limitations, to be determined based on circumstances within the jurisdiction, should be inserted in the brackets. n35

(B)(1) In deciding the appropriate campaign contribution limit that results in mandatory disqualification, the relevant factors to be weighed are the "cost of judicial campaigns, the size of the electorate, and the availability of alternative sources such as public funding . . . ." n36

(C) A "state. . . may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such [amounts will not deny] . . . the right to [a fair and impartial tribunal under the due process clause of the Fourteenth Amendment, and] unless and until the court enters such judgment no person shall be denied [due process] for failure [of a judge to be disqualified under this statute.] n37

(D) "Jurisdictions that [already have] specific dollar limits on contributions shall, at the very least, adopt the same limits [resulting in the disqualification of a judge]. . . ." n38

(E) Before a judge is disqualified under this statute, disqualification is subject to approval by the noncontributing side.

[*153]

(F) Failure of a state judge to comply with this statute shall result in the right to have the decisions, orders, or judgments entered by the violating state judge vacated by a federal court in the same judicial district as the state court where the rulings were made.

(G) The statute shall not apply to any "state that. . .institutes an action in the United States District Court for the District of Columbia for a declaratory judgment that" the state has adequate procedures to prevent campaign contributions in judicial elections from denying litigants the right to a fair and impartial tribunal under the Due Process Clause of the Fourteenth Amendment. n39

Essentially, Congress would be adopting a statute largely resembling Rule 2.11(A) and Rule 2.11(A)4 of the Model Code of Judicial Conduct (2007). The effect of which would be mandating the disqualification of an elected judge when any litigant or lawyer before the court donated over the individual or aggregate limit. Under Section 1(B) and 1(B)(1), deciding what amounts result in disqualification of a judge are determined by local circumstances, reviewed by a neutral federal district court judge. Further, the rule to allow the noncontributing party the final word avoids litigants giving to judges' campaigns in order to disqualify them under Section 1(E). n40 Under Section 1(F), the remedy provided is merely having the judgment vacated and a new trial instituted. Finally, if a state develops another way to protect the right to a fair and impartial tribunal, under Section 1(G), it can have the effects of the statute removed.

A. Why Enact This Proposal?

Given the apparent constitutionality of judicial elections, it is hard to imagine mandating disqualification whenever any campaign contributor came before a judge. n41 Therefore, this proposal only targets those contributions that interfere with the impartiality of the courts and not those that would be incidental to the campaign process. As a result, the benefit of the draft legislation is that it will prevent special interests from influencing judges for their own benefit, while, at the same time, not interfering with the election process. n42 [*154]

As Banner notes, there are four main reasons individuals donate to judicial campaigns. n43 First, many lawyers make small donations to judicial campaigns merely because other lawyers are donating and fear the consequences if they do not donate as well. n44 Second, lawyers and nonlawyers alike may donate to those candidates they feel will make good judges. n45 Third, individuals may donate to a judge's election campaign because they wish to promote and support the policies and politics of certain candidates. n46 Fourth, individuals may contribute to a judge's election campaign so that if the individual appears before the judge they may obtain favorable decisions or rulings. n47

The proposed disqualification rule would not undermine the ability of judges to raise money. Limits on the amount of money a lawyer can donate to a judge's election campaign would not likely affect the lawyer who previously only made a small token donation; rather, it would prevent any lawyer from gaining advantage by being an overly large contributor. n48 Next, the disqualification rule would not discourage donors who make campaign contributions to support good judges or ones that support the donor's political views because regardless of whether the judge heard their case, the donation would support their ultimate goal of having a well-qualified judge or supporting a certain political agenda. n49

Indeed, the draft legislation would only discourage contributors that fall into the category of seeking rulings in their favor. Donating to judges for this reason would be pointless because the judge would no longer be available to hear their cases. n50 Even if someone donated to a judge in order to influence decisions in their favor, within the prescribed amount, the contribution would have only made a marginal difference in the judge's elections chances when compared to the judge's other donors. n51 Under Section 1(A), the proposal would also prevent a judge from hearing a case where a litigant is able to bundle contributions, which could be the case with organizations like PACs, unions, or corporations. Furthermore, the time limit set by this proposal would prevent lawyers and litigants from donating to a judge just before they preside over that party's case or make rulings. n52 As a result, the draft legislation would strike at the heart of the problem of special interests influencing judges for their own benefit, and [*155] especially prevent judges from hearing cases involving large and important contributors that strongly influence whether the judge will have a well-financed campaign.

1. Congress' Role in Judicial Election Reform

Having shown that this proposal can make an impact in maintaining the fairness and impartiality of state courts the next question is of course: why Congress? The answer involves two reasons. First, under the modern interpretation of the Fourteenth Amendment, Congress has become the guardian of individual rights, not the states. n53 This is evidenced by Section 5 of the Fourteenth Amendment, which granted Congress the power to enforce the Due Process Clause. n54 Second, the traditional benefits of federalism do not apply to the problem of fairness and impartiality in state courts. n55

Federalism does have distinctive benefits. First and foremost, federalism provides economic benefits. n56 This includes the fact that decentralization, especially in a heterogeneous state, allows for differences in tastes and cultures to be acted upon. It also allows for experimentation and "competition between jurisdictions," which allows for the development of "optimal laws" to "attract taxpaying citizens and industries." n57 State governments are also "nearer to the people" than the federal government and have a closer identity of interests. n58 Finally, besides economic benefits, federalism prevents the national government from being too powerful and "overweening." n59

Nevertheless, none of these arguments in favor of federalism are applicable to the proposal suggested here. The right to a fair and impartial tribunal, which is enforced by this proposal is a civil right applicable to all U.S. persons. Thus, there is no room for local tastes and culture or competition to influence the enforcement of a universally applicable right. Next, perhaps states are closer to the people, but as Calabresi, a proponent of federalism, admits that "some measures need to be handled at the national rather than at the state level: for example. . .in the case of protection of minorities' civil rights, history suggests that the national govern [*156] ment is more sympathetic." n60 Finally, there should be little fear of too much power going to the federal government because, here, the proposal merely prevents judges from hearing cases they could not hear in the first place.

In the end, Congress has the ability to play a beneficial role in ensuring special interest influence does not replace the constitutional guarantee to a fair and impartial tribunal. Below, whether Congress can legally play such a role will be explored.

II. The Supreme Court's Section 5 Jurisprudence

In enacting the proposal outlined in Part I, Congress would have to rely on its Section 5 Enforcement Powers under the Fourteenth Amendment. Thus, the question of the proposed legislation's constitutionality raises issues of federalism. Below, the Court's current Section 5 jurisprudence will be outlined and then applied to the mandatory disqualification proposal in Part III.

A. The Court's Section 5 Jurisprudence

The Fourteenth Amendment of the Constitution instructs states not to deprive their citizens of due process and entrusts enforcement of this mandate to Congress. The amendment states, in pertinent part, that "No state shall . . . deprive any person of life, liberty, or property, without due process of law . . . ." n61 Furthermore, Section 5 the Fourteenth Amendment reads that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article." n62 Section 5, then, acts to prevent Congress from encroaching on state authority

As a result, Congress must take care when passing laws that brush upon the Court's federalism jurisprudence. Dinan reports that Congress rarely overcomes being overruled by the Supreme Court in federalism cases. n63 After being overruled, time and time again, Congress simply fails to obtain majorities to correct unconstitutional laws or sometimes even take steps to correct unconstitutional legislation in the first place. n64

The Fourteenth Amendment has become perilous for many Acts of Congress due to the Rehnquist Court's federalism jurisprudence. The Rehnquist Court, starting in 1992, diverged from earlier decades when the [*157] Supreme Court deferred to Congress' legislative judgments. n65 Some scholars even argue "that the hurdles. . .[now being] thrown up against congressional action were not recognized" before the Rehnquist Court. n66 Although this Note will not delve into the propriety of the Rehnquist Court's "revolutionary" federalism jurisprudence, any legislation invoking Section 5 must conform to today's legal climate that supports greater state rights. n67

Presently, whether legislation enacted under Congress' Section 5 powers passes constitutional muster depends on whether it passes the congruence and proportionality test. First, in order to pass the congruence and proportionality test in City of Boerne v. Flores, the Court has made clear that Congress may only enforce rights that have been recognized by the courts. n68 Second, in order to justify the breach of state sovereignty, the Court has said that Congress must identify a history of violations within the states. n69 Third, the Court, recognizing that Congress' Section 5 powers are merely remedial, has demanded that Congress justify its chosen remedy by ensuring its solution is "congruent and proportional[] between the injury to be prevented or remedied and the means adopted to that end." n70 In regards to congruence and proportionality, the Court has created a balancing test, which requires an analysis of the remedy chosen by Congress in light of the egregiousness of the harm, n71 the geographic and time limitations, n72 whether the constitutional violation is a result of state action or private action, n73 and whether the remedies already provided by the states are adequate. n74

Figuring out the exact dimensions of the congruence and proportionality test is no mean feat. Determining whether the Court has recognized an enforceable right is relatively straightforward. Nevertheless, determining how much harm Congress must demonstrate before it can constitutionally utilize Section 5, and the exact balance required in ensuring the remedy is congruent and proportional to the harm, are different matters. Although the congruence and proportionality test is not a bright line rule, the Court [*158] has given Congress some guidance in figuring out how to comply with its Section 5 jurisprudence.

1. Identify the Right

The first step in passing constitutional muster under Section 5 is identifying the constitutional right being upheld. In City of Boerne, the Court reasoned that if Congress could identify the right, this would relegate the Constitution to ordinary law. n75 As a result, before Congress can enforce any right, it must be in fact a judicially recognizable constitutional right. n76

2. The Evidence of Harm Requirement

Once the enforceable right is recognized, the Court's Section 5 cases have been clear that Congress must demonstrate a pattern of constitutional violations by the states before it can enact a remedy. n77 This process involves Congress creating a legislative history that evidences the widespread violations of an individual's constitutional rights.

One clear example of a lack of evidence of harm in the legislative history arose in City of Boerne. n78 In City of Boerne, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA) to cure the incidental burdens state regulations placed on the free exercise of religion. n79 The case partly turned on the fact that Congress had not shown sufficient evidence of past violations to justify its reliance on the Enforcement Clause of the Fourteenth Amendment. n80 The Supreme Court noted that, in forty years, no generally applicable laws motivated by religious bigotry had been passed by any state. n81 This was not "RFRA's most serious short [*159] coming," but a shortcoming nonetheless, which led to RFRA being declared unconstitutional. n82

Going beyond City of Boerne, more recent cases have conflicted as to the necessary amount of harm Congress must demonstrate. Indeed, Vikram Amar has argued that the Supreme Court's Section 5 cases have been inconsistent on the types of evidence from which Congress may draw inferences of constitutional violations by the states. n83 The question left open by these cases is whether Congress may rely on generalizations of violative conduct on the part of the states, as was the case in Nevada Department of Human Resources v. Hibbs, or must Congress be much more specific, as was discussed in Garrett? n84

Presumably, though, passing the stricter Garrett standard would satisfy the more general Hibbs standard in regard to the evidence necessary to justify Section 5 legislation. Therefore, if Congress was wise, it would do its best, as is done here in Part III(B), to satisfy the more specific standard laid out in Garrett. n85

As mentioned above, Garrett took a strict view as to the evidence of harm Congress needed to demonstrate before enacting Section 5 legislation. Specifically, the issue there was whether Congress could abrogate state sovereign immunity under Title I of the Americans with Disability Act. n86 The Court stated that Congress may only rely on its Section 5 powers "in response to state transgressions" and therefore Congress must reveal "a pattern of irrational state discrimination in employment against the disabled." n87 In examining the legislative history, the Court noted that Congress made a general finding that there existed discrimination against persons with disabilities in society; however, the dozen incidents highlighted by the respondents, even if unconstitutional discrimination, did not, by themselves, justify Congress' legislation. n88 Finally, the Court noted that the majority of evidence of employment discrimination against the disabled was from the private sector, not the states. n89 Therefore, the Court found that "no pattern of unconstitutional state action had been documented" and ruled the statute unconstitutional. n90

A narrow view of the evidence of harm requirement, as taken by this Note, requires that Congress cite specific instances of state wrongdoing, not hypothetical, imagined, or merely general ones. [*160]

3. The Congruence and Proportionality Requirement

The final barrier to enacting Section 5 legislation is the congruence and proportionality requirement. The Court has noted that Congress may prevent constitutional behavior when it is remedying state violations of the Fourteenth Amendment--also known as prophylactic legislation. n91 Nevertheless, the Court has been clear that Congress cannot make substantive changes to state law, and should limit its remedies to remedial measures. n92 Thus, congruence and proportionality ensures Congress' means are proportionate and its ends legitimate. n93

The congruence and proportionality test specifically involves balancing the remedy against a number of specific considerations. n94 In City of Boerne, Justice Rehnquist wrote that Section 5 legislation does not "require[] termination dates, geographic restrictions, or egregious predicates." n95

However, the precedent after City of Boerne indicates that the presence of these factors and others will help legislation survive scrutiny. Since City of Boerne, in order for legislation to survive the congruence and proportionality test, it appears critical that the remedy be proportional to the harm it is alleged to remedy, n96 that the geography and time scale of the remedy be limited to violators, n97 that the constitutional violation being remedied is a result of state action, n98 and that the remedy take into account whether state remedies already provided are adequate. n99

A. Egregiousness of the Harm versus the Proposed Remedy

In regard to the egregiousness of the harm verses the proposed remedy factor, the Supreme Court has stated in the past that "strong measures appropriate to address one harm may be an unwarranted response to another, lesser one." n100

This was the case in City of Boerne. The Court stated that in passing RFRA, Congress had targeted incidental burdens on the freedom of religion created by state laws. n101 The Court went on to say that preventative [*161] measures were justified when the state "laws affected by the Congressional enactment have a significant likelihood of being unconstitutional. n102 Yet in regards to RFRA, the legislation subjected all state laws to challenge as long as a claimant alleged a "substantial burden on their free exercise of religion." n103 Further, the "least restrictive means" requirement put a very difficult burden on states to meet and likely created "religious exemptions from civic obligations of almost every conceivable kind." n104 Therefore, the Court held that the remedy chosen by Congress in RFRA was "broader than is appropriate." n105

Unlike City of Boerne, Tennessee v. Lane went in favor of Congress. Specifically in Lane, Congress attempted to enforce the right of access to the courts for disabled persons under Title II of the Americans with Disabilities Act by creating a private remedy for discriminated against disabled individuals if the state did not make reasonable accommodations for them. n106 The Court did not focus on Title II as a whole and its wide variety of applications but on whether the remedy chosen by Congress was sufficient to uphold the right of court access. n107 Justice Stevens, writing for the majority, said the remedy was limited because it merely required states "to take reasonable measures to remove architectural and other barriers to accessibility." n108 States only had to alter services and programs when the person seeking a change was "otherwise eligible" to participate. n109 In the end, the states were obligated to make such accommodations because due process required "affording. . .all individuals a meaningful opportunity to be heard." n110

Looking at City of Boerne and Lane, the principle taken away from these cases is that any remedy Congress enacts must be related to the harm. If the harm is minimal or hypothetical, as in City of Boerne, a sweeping remedy would be inappropriate; whereas in regards to an existent harm, as in Lane, a reasonable remedy will pass scrutiny

B. Geographic and Time Limitations

Other considerations in the congruence and proportionality balancing test are geographic and time limitations. n111 [*162]

Geographic and time limitations have entered into the Court's calculus in previous cases. In City of Boerne, the Court compared RFRA to the Voting Rights Act. n112 The Court approvingly noted that the Voting Rights Act was targeted at regions where flagrant discrimination occurred. n113 Further, the Voting Rights Act terminated five years after the danger of voting discrimination did not appear. n114 Unfortunately, unlike the Voting Rights Act, RFRA allowed all laws to be challenged anywhere and never terminated, which led to its being held unconstitutional. n115 Further, like City of Boerne, United States v. Morrison turned in part on geographic limitations. The Court stated that the remedy chosen by Congress applied to all states, rather than just those where the evil of gender motivated crimes existed. n116 As such, the Court held that Congress exceeded the limits of the Fourteenth Amendment. n117 Based on this precedent, then, Justice Scalia's dissent in Hibbs has credence. In Hibbs, he sharply opined that "there is no guilt by association, enabling the sovereignty of one State to be abridged under [Section 5] because of violations by another State, or by most other States, or even by 49 other States." n118

In the end, geographic and time limitations help demonstrate a limited intrusion of state rights. Thus, Section 5 legislation should be limited to state offenders only and, as much as possible, give states a way to avoid falling under the legislation.

C. State Action

Another aspect of the congruence and proportionality test is the state action requirement.

The state action criteria appeared in Morrison. The issue there was whether the Violence Against Women Act, which punished crimes motivated by gender, violated the Fourteenth Amendment. n119 According to the Court, the act did not place any consequences on state officials. n120 As such, the Court held that Congress exceeded the limits of the Fourteenth Amendment. n121

In the end, any remedy passed by Congress under Section 5 must remedy state violations, not private ones. n122 [*163]

D. Remedies

Finally, in enacting Section 5 legislation Congress must consider the remedies states already have in place to address constitutional violations because they may remove the need for enforcing legislation by Congress. n123

This was the situation in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank. Congress, in passing the Patent Remedy Act, used its Section 5 powers to abrogate Eleventh Amendment immunity to prevent states from violating patents. n124 The Court found that Congress had not found a pattern of patent infringement by the states. n125 Further, the Court noted that when depriving an individual of their patent rights, this required due process. n126 But the Court reasoned that state infringement alone did justify finding state action unconstitutional; only where the state did not provide a remedy could the state action violate the Constitution. n127 The Court wrote that even though state remedies appeared less convenient than federal remedies, this did not make them constitutionally inadequate. n128 Therefore, according to the Court, "only where the state provided no remedy, or only inadequate remedies, to injured patent owners. . .could a deprivation of property without due process result." n129

In fashioning a remedy, then, Congress must make a showing that states provide no remedies or that the remedies are constitutionally deficient, rather than merely inconvenient.

III. Imposing The Proposed Mandatory Disqualification Rule Is A Lawful Use Of Congress' Section 5 Powers Under The Fourteenth Amendment

If Congress wishes to address the problem of campaign contribution influence in the courtroom it has to ensure that its chosen remedy passes the congruence and proportionality test outlined above in Part II. Below, the Court's Section 5 jurisprudence will be applied to the draft mandatory disqualification rule laid out in Part I. First, it will be shown that the right to a fair and impartial tribunal includes the right to have a judge not beholden to any of the parties because they are a major contributor. Second, it will be demonstrated that judges hearing cases involving their contributors creates verifiable harm. And third, it will be shown that the remedy [*164] proposed by this Note satisfies the court's congruence and proportional criteria.

A. Showing the Constitutional Right to a Fair and Impartial Tribunal

The first step in judging the constitutionality of any Section 5 legislation is the need for Congress to uphold a recognizable constitutional right. n130 Here, the draft mandatory disqualification rule has been designed to enforce the right to a fair and impartial tribunal. Admittedly, the specific effects of campaign contributions on the right to fair and impartial tribunals have never been explored by the Supreme Court and authority by state courts on point have been negative. n131 Nevertheless, in light of the Supreme Court's fair and impartial tribunal precedents, a convincing argument can be made that current state court precedent, which does not require judges to recuse themselves when a major campaign contributor comes before a judge they have donated to is wrong when evaluated in the context of the Due Process Clause of the Fourteenth Amendment.

1. The Right to a Fair and Impartial Tribunal

In and of itself, it is easy to demonstrate that the right to an impartial tribunal has long been recognized by the Supreme Court. n132 In Tumey v. State of Ohio, Ohio law allowed the mayor of the town to hear certain cases and compensated him if the defendant was convicted. n133 The question was whether this violated the Due Process Clause of the Fourteenth Amendment. n134 The Supreme Court noted that states had the right to regulate "matters of kinship, personal bias, state policy, and remoteness of interest." n135 However, the Court also stated that it violated the Due Process Clause when a judge "had a direct, personal, substantial pecuniary interest in reaching a conclusion against [the defendant]." n136 The Court reasoned that even though the mayor only made $ 12.00 for finding a defendant guilty, this was not a de minimis interest. n137 The Court stated that considerations of such a loss should not factor into the mayor's decision [*165] and the possibility of such an occurrence rendered the proceedings unjust. n138 In addition, the Supreme Court also wrote that

every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused denies the latter due process of law. n139

The Court then reversed the Supreme Court of Ohio's affirmance of the mayor's decision. n140

Thus, Tumey is responsible for establishing both the direct pecuniary interest test and the possible temptation test in evaluating whether judges are sufficiently impartial to give litigants a fair trial. n141 Elucidating the direct pecuniary interest test and possible temptation test are Aetna Life Ins. Co. v. Lavoie n142 and In re Murchison, respectively. n143

In Aetna Life, Justice Embry, of the Alabama Supreme Court, filed two claims alleging "bad-faith failure to pay a claims" against an insurance company. n144 The problem was that while those claims were pending, Justice Embry and the Alabama Supreme Court ruled on a case that recognized a bad-faith-refusal-to-pay claim in Alabama. n145 The petitioners argued that Justice Embry should have recused himself and that his refusal to do so violated their Fourteenth Amendment right to due process. n146 The Supreme Court reasoned that Justice Embry cast the deciding vote in a case where all the issues in that case were present in his own cases against insurance companies, the result of which was to "enhance[] . . . the legal status and the settlement value of his own case." n147 Indeed, Justice Embry received a "tidy sum" of $ 30,000 from the insurance companies he sued. n148 Based on these facts, the court held that Justice Embry's interest was direct and pecuniary and violated the due process rights of the petitioners. n149

Justice Brennan concurred with the decision and set down his interpretation of the Court's decision. n150 He wrote that "nonpecuniary interests . [*166] . . have been found to require recusal as a matter of due process." n151 More importantly, according to Justice Brennan, "an interest is sufficiently 'direct' if the outcome of the challenged proceeding substantially advances the judge's opportunity to attain some desired goal even if that goal is not actually attained in that proceeding." n152

The other holding from Tumey, the possible temptation test, was further discussed in In re Murchison. In Murchison, a judge acting as a one-man grand jury conducted a contempt hearing against a witness he believed committed perjury. n153 The trial judge, affirmed by the Michigan Supreme Court, held that due process did not prevent him from presiding over the contempt hearing. n154 Reversing the lower courts, the Supreme Court reasoned that the "law has always endeavored to prevent even the probability of unfairness." n155 Quoting the possible temptation test from Tumey, the Court noted that the test may at times "bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties." n156 Thus, the Court concluded that "justice must satisfy the appearance of justice." n157

Seventy-five years later, the Supreme Court, in Republican Party of Minnesota v. White, discussed, but did not rule on the Due Process Clause in the context of judicial elections and campaign contributions. n158 In White, the Supreme Court held that Minnesota's canon of judicial conduct which prohibited judicial candidates from stating their opinions on political and legal issues violated the First Amendment. n159 The respondents supported their limitation on candidates' First Amendment rights based on the compelling state interest of maintaining the impartiality and appearance of impartiality in the judiciary. n160 Undefined by the parties, the Court took up the task of defining impartiality. n161

The Court considered three possible definitions of impartiality. First, the Court rejected defining impartiality as meaning a "lack of preconception in favor of or against a particular legal view." n162 The Court noted that this type of impartiality was not a compelling state interest because "avoiding judicial preconceptions on legal issues was neither possible [*167] nor desirable." n163 Second, the Court also rejected the idea that impartiality meant that a judge "be willing to consider views that oppose his preconceptions, and remain open to persuasion." n164 The Court disregarded this interpretation as well because judges often engage in extra-judicial activities concerning the law, such as writing and speaking, and have committed themselves to certain legal positions. n165 In the end, the majority agreed with the third definition of impartiality; namely that impartiality meant a "lack of bias for or against either party to the proceeding." n166 This assured equal protection under the law and "guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party." n167

Justice Scalia, writing for the majority, also found that judicial elections were compatible with the Fourteenth Amendment's Due Process Clause since the practice had existed at the time of the passing of the amendment. n168 However, the majority did not reach the issue of whether a due process issue was raised by campaign contributions in judicial elections.

In concurrence, though, both Justice O'Connor and Justice Kennedy seemed aware of the possible due process problems raised by campaign contributions. In her concurrence, Justice O'Connor was concerned that judicial elections created the risk that judges may feel they have a personal stake in the outcome of a highly publicized case since it may hurt their election chances. n169 Further, she wrote that judges who face elections must rely on fundraising to support their campaigns and this consequently leaves "judges feeling indebted to certain parties or interest groups." n170 However, according to Justice O'Connor, "if the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges." n171

Justice Kennedy had his own views as well. He added that "States are free to choose [judicial elections] . . . rather than, say, appointment and confirmation" and that the Court should not condemn judicial elections "across the board." n172 Further, although Justice Kennedy did not cite his concurrence in White, it appears that he expanded upon his ideas in his concurrence in New York Board of Elections v. Lopez Torres. There, Justice Kennedy continued to believe that judicial elections are constitu [*168] tional. n173 Nevertheless, he went on to say that "If New York statutes for nominating and electing judges do not produce both the perception and the reality of a system committed to the highest ideals of the law, they ought to be changed and to be changed now." n174 Unfortunately, Justice Kennedy felt it inappropriate for the Court to intervene because the issue was not germane to the suit in Lopez Torres. n175

Based on the precedent, then, Congress must deal with the fact that selecting state judges by election is constitutional under the Fourteenth Amendment and therefore Congress cannot outright ban the practice. n176 However, if Justices O'Connor in White and Kennedy's concurrences in White and Lopez Torres are followed, there is room for Congress to get involved on an as-applied basis where judicial elections threaten civil rights, or more pertinent here, the right to a fair and impartial tribunal. Therefore, if Congress chooses to deal with the threat that campaign contributions bear on impartiality in the courts through the proposed solution, here, or any other, the legal justification for such action should and must rest on the fact that it violates the direct pecuniary interest test or the possible temptation test by creating party bias. n177

2. Campaign Contributions and the Right to a Fair and Impartial Tribunal

It has never been taken up by the Supreme Court whether, as a matter of due process, a judge must recuse himself when he receives a campaign contribution from one of the litigants or their lawyers. n178 Based on the Tumey line of cases, the argument made in this Note is that contributions over a certain threshold raise due process concerns. The proposal presented here does not draw a bright line because a contribution that threatens due process in one state may be de minimis in another based on local circumstances. Unfortunately, in the vast majority of states the precedent fails to adequately protect the right to a fair and impartial tribunal. [*169]

A. Limited Recognition of the Due Process Problems Created by Campaign Contributions at the State Level

A few courts have begun to recognize that campaign contributions may deny the right to a fair and impartial tribunal. In dicta, the Florida Supreme Court in MacKenzie v. Super Kids Bargain Store, Inc., stated that "there may very well come a point where a political contribution is substantial enough that it would create a well-founded fear of bias or prejudice." n179 Further, the Florida Supreme Court stated that where a contribution can be classified as a normal part of a campaign, "it does not tend to indicate any closer relation between the contributor and the recipient than would ordinarily exist between members of the same local bar." n180

Citing MacKenzie, the Supreme Court of Oklahoma, in Pierce v. Pierce found that campaign contributions are incident to the campaign process and that, without more, the relationship between a judge and the contributor is equal to that of members of the same bar association. n181 Yet the court added that where there was an additional factor present, judges should disqualify themselves. n182 The court held that impartiality could be questioned where a lawyer made the maximum allowed contribution, a member of the lawyer's immediate family made a comparable contribution, the lawyer solicited contributions on the judge's behalf, and the judge was presiding over that lawyer's case. n183 The court found that where this occurred, it did not mean the judge has neither a direct pecuniary interest, nor any bias during the proceedings. n184 However, the Court stated that "due process must include the right to a trial without the appearance of judge partiality arising from counsel's campaign contributions and solicitation of campaign contributions on behalf of a judge during a case pending before that judge." n185

Both MacKenzie and Pierce leave open the possibility that a litigant could challenge another side's past or present campaign contribution to the presiding judge. Further, as supported by the proposal here, normal contributions incident to judicial elections do not create due process issues. Unfortunately, Pierce failed to address the relationship between the right to a fair and impartial tribunal and total campaign contributions, special circumstances surrounding the timing of such contributions, or whether [*170] the judge received other contributions in the maximum amount, which could bring about partiality or the appearance of partiality in the courtroom in certain circumstances. n186 Although headed in the right direction, Pierce and MacKenzie cases left serious questions open.

In identifying the right to a fair and impartial tribunal when campaign contributions are involved, Congress could point to these decisions if they apply to the situations that Pierce failed to address. For example, if Pierce was extended to include situations where a litigant timed their contributions to a judge just before a decision on a motion was made, this would provide sufficient legal justification for Congress to enact Section 5 legislation. However, even if this is not the case, Congress is still free to do its own analysis under Tumey until the Supreme Court has its say, since state court decisions do not make binding constitutional law.

B. Many States Fail to Recognize the Due Process Problems Created By Campaign Contributions

If Pierce was widely accepted among the states, Congress could wait until litigants themselves challenged the status quo. Unfortunately, many courts fail to recognize the dangers campaign contributions pose to the rights of litigants to a fair and impartial tribunal. n187 If these courts' legal reasoning controls, it would prevent this Note's proposed mandatory disqualification rule from being constitutional. Nevertheless, based on Tumey and its progeny, a strong argument can be made that the current approach taken by many states is wrong.

When confronted with a disqualification motion based on campaign contributions many judges are unwilling to recuse themselves, regardless of the likely need. n188 For example, in August 2002, Massey Energy Company was hit with a $ 50 million jury verdict. On appeal, the plaintiff argued that Justice Benjamin of the West Virginia Supreme Court should have disqualified himself because, Mr. Blankenship, the CEO of Massey had donated over $ 3 million to the campaign of the Chief Justice. n189 In refusing to recuse himself, Justice Benjamin accused the plaintiff of "surmise, conjecture and political rhetoric" but did not address the due process issues created by the other side's campaign contributions. n190 Subse [*171] quently, in a 3-2 decision, Justice Benjamin in the majority, reversed the verdict against Massey Energy Company. n191 In dissent, Justice Larry Starcher wrote, "I am one judge voting on this case who can say that I owe nothing to Mr. Blankenship one way or the other." n192

Unlike Justice Benjamin, other courts have been more forthcoming in their reasoning. First, some courts simply fail to find that judges have anything to "gain or lose . . . of a pecuniary or personal nature" or create the appearance of bias when judges hear cases involving their campaign contributors. n193 Second, as was reasoned in Aguilar, courts may be afraid that mandating disqualification when campaign contributors come before the judges they donated to would force judges to recuse themselves in a majority of the cases they preside over, hampering the administration of justice. n194

When examined using the Supreme Court's analysis under the Tumey line of cases, the above reasoning falls flat constitutionally. First, judges are paid for their services. Second, the position of judge is prestigious in American society. As Bravin notes, the title of judge is "the closest approximation to the status of nobility bestowed by the American republic." n195 To say a judge does not have a direct pecuniary interest in receiving contributions to help their election campaign denies reality. A campaign contribution is like "any other form of direct or indirect gift benefiting the judge," regardless of the presence of other factors. n196 Indeed, if Justice Brennan's interpretation in Aetna Life holds, the "desired goal" of getting reelected would seem to be enough to satisfy the direct interest test. n197

In addition, it is hard to argue that campaign contributions do not create the appearance of partiality. In Texas alone, a stunning survey done in 2001, shows that: [*172]

83 percent of the Texas public, 79 percent of Texas lawyers, and 48 percent of Texas state judges believe that campaign contributions have a significant influence on judicial decisions. Only one percent of lawyers and 14 percent of judges believe that campaign contributions have no influence. n198

If 86 % of judges in Texas believe campaign contributions have an influence over decisions, it is hard to argue that the "appearance of justice" exists in Texas. n199 Yet Texas is not alone. As mentioned in the Introduction, 76 % of Americans believe that campaign contributions have "some influence" over judges' decisions. n200 As a result, a noncontributing litigant "has reason to fear that he is starting with a handicap" when coming before a judge who has received campaign contributions from the other side. n201

Lastly, the argument that disqualifying judges based on campaign contributions would hamper the administration of justice should receive short shrift as well. In the first place, states are denying litigants their constitutional rights based on convenience. Second, as Grannis notes, states that choose their judges with elections, choose their judges on the basis of their ability to gain political support. n202 Therefore, it is the state's duty to mitigate bias created by its own processes. n203 Indeed, as Justice O'Connor in White wrote, any problems with judicial elections are "largely ones the State brought upon itself by continuing the practice of popularly electing judges. n204

Of course, if the Supreme Court accepts the position taken by states that do not recognize the threat campaign contributions pose to a fair and impartial tribunal, the mandatory recusal rule presented here will not pass constitutional muster. Nevertheless, these states' reasoning is likely wrong because they fail to recognize the direct interest judges have in getting reelected and the lack of an appearance of justice. In order to pass this Note's mandatory recusal rule, Congress should return to the Tumey line of cases to argue that the right to a fair and impartial tribunal is not being enforced. In fact, this recommendation may be made easier with Pierce on the books since this decision has left room for an interpretation in line with Tumey and its progeny. [*173]

B. Showing Evidence of Harm

Now that it is shown that Congress, in enacting the mandatory disqualification rule presented here would be enforcing the right to a fair and impartial tribunal, the next step is to show a pattern of violations. In this case, it must be shown that there is a pattern of widespread violations of the right to an impartial tribunal at the state level caused by judges who are presiding over cases where their campaign contributors are lawyers or litigants in the suit before them. Of course, within the space of this Note, the legislative record that needs to be developed in order to satisfy the Court could not be reproduced here. Nevertheless, it can be demonstrated that the due process violations created by judges hearing cases involving their campaign contributors are specific, serious, and prevalent in line with Garrett's specificity requirement. Unfortunately, showing definitively that there is a relation between judicial decision making and campaign contributions is nearly impossible. n205 Nevertheless, as Schotland suggests, abuse of the right to a fair and impartial tribunal may be demonstrated if the judge's performance on the bench is affected by contributions hoped for or received. n206 Although there is only an incomplete picture, the findings are grim as demonstrated in three states: Ohio, Louisiana, and Texas.

A study by The New York Times found that, Ohio Supreme Court justices, on average, voted 70 % of the time in favor of litigants who had contributed to their campaigns; one justice even doing so 91 % of the time. n207 In over 200 cases, at least one justice on the Ohio Supreme Court cast votes, and did not recuse him or herself, after receiving a significant campaign contribution. n208 Often, this occurred just after arguments and before a case was decided. n209

The New York Times also reported that empirical data questioned the impartiality of the Louisiana Supreme Court. The report summarized Professor Palmer's study, which is forthcoming in the Tulane Law Review. n210 Between 1992 and 2006, Professor Palmer found that "on average, justices voted in favor of their contributors 65 % of the time, and two of the justices did so 80 % of the time." n211 [*174]

And finally, in Texas, a 2007 study demonstrated that "dollars and decisions are strongly associated." n212 The study found that defendants won 76 % of the time and plaintiffs 24 % of the time. However, plaintiffs and defendants could increase their chances by contributing to the justice's election campaigns. n213 Accordingly, plaintiffs who contributed won 55 % of the time, while if the plaintiff's lawyers contributed, the plaintiff won 44 % of the time. n214 In regards to defendants, a contribution by the defendant increased their chances by 20% , and a contribution by the defendant's attorneys increased their chances of winning by 18 percent. n215 According to the study, "across justices . . . votes correlate with contributions." n216

In conclusion, the evidence presented demonstrates that the low confidence the general public has in the impartiality of state judiciaries is justified. In Ohio, Louisiana, and Texas, campaign contributions led to an empirically noticeable influence on judicial decision making. More research needs to be done given the dearth of empirical studies available. n217 Yet, it is hard to believe that other states do not have similar problems. n218

C. Showing Congruence and Proportionality

The final hurdle Congress has to jump before being able to implement the proposed mandatory disqualification rule is that this remedy has to be congruent and proportional to the harm being cured. n219 In determining whether the draft legislation is congruent and proportional, the remedy must be examined in light of the egregiousness of the harm, n220 the geo [*175] graphic and time limitations, n221 whether the constitutional violation resulted from state action, n222 and whether the remedies already provided by the states are adequate. n223 Below, it will be demonstrated that the mandatory disqualification rule as proposed will most likely satisfy the congruence and proportionality test created by the Court.

1. Showing Egregiousness of the Harm versus the Proposed Remedy

Here, if the mandatory disqualification rule suggested is enacted by Congress, it would be enforcing the right to a fair and impartial tribunal, specifically enshrined in the Due Process Clause. n224 Like in Lane, states have an obligation to provide an impartial tribunal. Also, unlike City of Boerne, under the proposed rule, when a judge is not disqualified from sitting in certain cases where a campaign contributor is a party, this creates a direct constitutional violation by violating the other litigants' right to an impartial tribunal.

Given the due process violation of a lack of an impartial tribunal, the proposal provides a reasonable remedy. States can still elect their judges and judges can still receive campaign contributions. Judges in cases where contributors gave less than the proscribed amounts in section 1(A) can still hear the case. For example, a $ 300 donation, as was the case in Aguilar, would likely not force a judge to disqualify themselves under this proposal since it would likely only be incidental to the campaign process. However, donations that reach into the thousands and are timed to coordinate with a judge's decisions, as done by the lawyers in Texaco would be a different matter. n225 Furthermore, the remedy is not one-size-fits-all but rather tailors the amounts and timing that lead to disqualification to local conditions, as stated in section 1(B)(1). Finally, like Lane and unlike City of Boerne, the proposal does not make a wide range of state laws challengeable, rather, at worst, section 1(F) reasonably entitles litigants to a new trial or new judge to ensure a fair proceeding, a right states were obligated to provide anyway.

Therefore, the proposal is narrowly tailored to its goal of restoring impartiality in state courts without sweeping up unrelated laws into its purview. [*176]

2. Showing Geographic and Time Limitations

In light of the need for geographic and time limitations, the mandatory disqualification proposal satisfies the Court's requirements. First, in regards to geographic limitations, unlike City of Boerne and Morrison, under section 1(B) only those thirty-nine states that elect their judges are affected by the proposal. Second, in regards to time limitations, section 1(G) allows states to no longer be subject to the conditions set out by the legislation if they demonstrate that the procedures they have in place adequately protect the right to a fair and impartial tribunal from campaign contributions.

Therefore, the mandatory disqualification proposal is sufficiently limited in geographic scope and time to pass constitutional muster.

3. Showing State Action

Reading the text of the proposed rule makes it clear that its sole concern is state action. Nowhere in its text does it regulate private individuals' ability to contribute or advocate for a judge's election campaign. Rather, the only actors who are given obligations under the proposal's text are judges, who by their nature are state officials.

Therefore, the proposed legislation would satisfy the state action requirement.

4.Showing Inadequate Remedies

Finally, one argument against the legality of this proposal is that states have already created safeguards through disqualification and recusal rules and many states already have campaign contribution rules on the books. Nevertheless, a strong argument can be made that these safeguards are inadequate.

In regards to already existing disqualification rules, there is evidence that current rules are inadequate to protect constitutional guarantees, unlike the adequate patent remedies provided by states in Florida Prepaid. Currently, forty-seven states have incorporated the Model Code of Judicial Conduct, which includes the disqualification canon 3E(1) that states: "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." n226 Yet Goldberg, Sample, and Pozen assert that recusal is "systematically underused and underenforced" in the states. n227 They point out that there are no "system [*177] atic empirical studies on the success rates of disqualification motions or the circumstances in which recusal occurs." n228 But they sustain that an inference that recusal is underutlized may still be made. n229 First, as Shaman and Goldschmidt note, disqualification rules are "extremely general, ambiguous, or conflicting from one jurisdiction to another and judicial disqualification frequently is subjective, random, and arbitrary." n230 Second, parties view disqualification motions as "costly and risky" because of a heavy evidence burden, steep odds against success, and likelihood of angering the judge, which many lawyers have an interest in avoiding. n231 Third, since judges often decide challenges to their own impartiality, hearings are not required nor are judges required to give reasons for their decisions, this makes it simple for judges to reject valid claims without fear of the consequences. n232 Fourth, psychologists have shown that "much bias is unconscious and that people tend to underestimate and undercorrect for their own biases and conflicts of interests." n233 And fifth, as a survey of trial and intermediate appellate judges demonstrate, "judges as a whole were ambivalent about recusal when the contribution amount was $ 250 or greater." n234 As a result, current recusal standards fail to enforce the constitutional right.

In regards to existing campaign rules, a strong argument against their adequacy can be made. As the studies looking at Texas, Ohio, and Louisiana discussed above in Part III(B) demonstrate, influence occurs even in the wake of campaign contribution limits. Indeed, Texas limits individual contributions to between $ 1,000 and $ 5,000 depending on and $ 52,000 and $ 75,000 from PACs depending on the level of the judgeship being sought. n235 Ohio limits campaign contributions from individuals to between $ 300 and $ 2500 and between $ 3,000 and $ 5,500 for PACs. n236 And finally, Louisiana limits campaign contributions from individuals, corporations, labor unions, and PACs to $ 5,000 and large PACs with more than 250 members are limited to $ 10,000 for supreme court candidates, appellate court candidates, and district court candidates in New Orleans. n237 All other judicial candidates in Louisiana are limited to $ 2,500 from individu [*178] als, PACs, unions, and corporations and $ 5,000 from large PACs over 250 members. Yet even with these safeguards, influence was shown to occur in all of these states.

As a result, given the lack of clarity in the law of disqualification and insufficient campaign contribution laws, the remedies provided by states are constitutionally insufficient to protect the right to a fair and impartial tribunal. State disqualification rules simply suffer from the unwillingness of parties to raise disqualification motions, the general lack of review of recusal decisions, a judge's likeliness to underestimate their own bias, and judges' admitted ambivalence towards campaign contributions. In the case of existing campaign contribution rules, it is clear that even when in place, influence still occurs. In the end, although Congress would need to conduct a broader study than exists now, based on the results in Texas, Louisiana, and Ohio, such a study would likely favor Congress and justify imposing the proposal suggested here on the states.

D. Congruence and Proportionality Satisfied

The Court's purpose in enacting the congruence and proportionality test was to protect the rights guaranteed to the states by the Constitution. n238 The right to a fair and impartial tribunal includes not having a judge hear a case involving his or her major contributors. Further, it was also demonstrated that this practice, as of now, is having a specific and identifiable impact on judicial decisions. Finally, all of the parts of the congruence and proportionality test, including examining the remedy in light of the alleged harm looking for the geographic and time limitations, ensuring the remedy only encompasses state action, and examining remedies already provided by the states ensures that the balance between the national police power and state power remain as the Framers intended. By design, this Note's proposed mandatory disqualification rule was meant to maintain this balance and given its intentionally limited reach it will most likely satisfy the congruence and proportionality test. Thus, this proposal ensures that proper balance between federal and state power propounded by the Supreme Court and this passes muster under Section 5 of the Fourteenth Amendment

Conclusion

It has become apparent that special interest groups and others are no longer merely seeking influence in the political branches. As donations to judicial races rise at an astounding pace, election cycle after election cy [*179] cle, it is imperative that something be done to protect the fairness and impartiality of state courts. Yet seemingly judges are oblivious to the threat campaign contributions pose to due process rights, and states are ambivalent about taking action. If these actors will not take up responsibility for insuring the integrity of state courts, then Congress must do so.

The Court's recent federalism jurisprudence has been protective of state rights. Nonetheless, the right to a fair and impartial tribunal is a long recognized right, critical to the operation of the Due Process Clause and this justifies Congressional involvement in its protection.

The influence money is having in courts themselves is undeniable. Yet the solution proposed here is not radical. Indeed, it leaves judicial elections in place and does not interfere with the ability to donate to judicial campaigns. If Congress comes down on the states with a hammer, as occurred in other failed Section 5 legislation, the Supreme Court would likely step in and call foul. As a result, the benefit of a mandatory disqualification rule, based on a threshold that is locally determined is that it is hardly intrusive at all. It merely prevents judges from hearing cases that they should never have been hearing in the first place, for the sake of fairness and the Constitution.

Most importantly, though, this Note opens up the possibility that those seeking to reform judicial elections may then benefit from, instead of working state by state, going directly to Congress and finding a national solution to a problem that encompasses the majority of the nation. If the proposal presented here is not palpable to reform seekers, then certainly others would be possible so long as they fit within the Supreme Court's Section 5 framework described in this Note. Whether through mandatory recusal reform or another solution, a congressional solution to the problem of special interest influence in the courts should receive serious consideration.

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FOOTNOTES: