Is this free speech or elections for sale?

Published 10:19 am Friday, March 6, 2009

The U.S. Supreme Court has ruled that free speech includes the right to spend virtually unlimited money in expression of that right.

In practical terms it means if I had wanted to support West Virginia Supreme Court Justice Warren McGraw in his campaign against Brent Benjamin, who won the election, I could have sent McGraw a campaign contribution.

In my budget that might have meant $100. That is my expression of free speech. On the other hand, Don Blankenship, CEO of Massey Coal, sent Benjamin $3 million bucks as his expression of free speech. Blankenship has more free speech than anyone in West Virginia.

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Benjamin won that election with the considerable help of Blankenship’s free speech and with a campaign that claimed the incumbent, McGraw, liked pedophiles by joining in a majority ruling that released a convicted sex offender from prison.

In turn, Benjamin ruled in favor of Blankenship on cases pending before the SC twice, refusing to recuse himself simply because Blankenship bought him his seat.

But Blankenship wasn’t satisfied that he owned the West Virginia Supreme Court simply by seating Benjamin. So Blankenship made sure he was known by the Chief Justice of the court. In fact, they knew each other so well that the media recorded pictures of Blankenship and the Chief Justice, one Elliott E. Maynard, vacationing together in Monte Carlo.

When ABC News asked Blankenship about that trip he is reported as saying someone, “is liable to get shot” if that line of questioning was pursued or pictures were taken.

Now, where I come from most folks don’t give you $3 million dollars just because they like your educational background or your public speaking ability. They pony up that kind of serious money expecting some kind of serious return on investment.

And while gambling trips to Monte Carlo don’t cost $3 million they do cost more than my family vacation to Myrtle Beach. So what could Blankenship get for his “free speech” money?

Actually, it turned out to be a pretty good investment. For $3 million plus a vacation for the Chief Justice, Blankenship earned a West Virginia Supreme Court ruling in his favor in a $50 million dollar case.

In a 3-2 ruling Blankenship’s Massey Coal prevailed against Hugh Caperton, CEO of a coal company who claimed Massey violated a contract with his company. Not a bad deal: $3 million and a trip for $50 million. Who could ask for more from free speech?

Now this case comes before the U.S. Supreme Court and the question is whether the Constitutions’ due process clause requires Benjamin to step aside in the Massey case.

Massey has argued that the case is simply “a grand conspiracy theory” and the decisions favoring Massey are entirely coincidental to the $3 million and the Monte Carlo trip.

Further, that due process has never included a “looks bad” test.

Thirty nine states elect judges with all the free speech that special interests like Blankenship can afford.

The system is vulnerable to exactly the kind of abuse that happened here in West Virginia, where Don Blankenship used his constitutionally guaranteed right to elect a justice and befriend a chief justice.

Our Supreme Court will doubtlessly decide this case on the narrowest possible basis, reflecting only upon the Benjamin recusal decision.

But the real issue here is not just a single justice and his ethical dilemma. It is the current Supreme Court argument that free speech can be translated into buying the candidate of your choice.

As long as free speech remains money to buy elections, the nation is at risk, whether the candidates are judges or politicians.

Jim Crawford is a contributing columnist for The Tribune and a former educator at Ohio University Southern.