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20 Wm. & Mary Bill Rts. J. 1085 (2011-2012)
Distorting Democracy: Campaign Lies in the 21st Century

handle is hein.journals/wmbrts20 and id is 1095 raw text is: DISTORTING DEMOCRACY:
Gerald G. Ashdown*
By now, nearly everyone in the legal community has heard of Caperton v. A. T.
Massey Coal Co., Inc.,' a case in which the United States Supreme Court held that a
state supreme court justice should have recused himself as a matter of due process.2
At the state level, Caperton involved an appeal of a $50 million judgment against
a company whose chief executive officer (CEO) had contributed $3 million dollars
to the justice's election campaign.3 What most are not aware of, however, is the lies
and distortions directed at the justice's incumbent opponent in order to defeat his
reelection. Don Blankenship, Massey's CEO at the time, was the primary investor
in a political organization formed under § 527 of the Internal Revenue Code4 named
And For The Sake Of The Kids.' The organization was instrumental in the 2004
campaign for Justice Warren McGraw's seat on the West Virginia Supreme Court of
Appeals, the highest court in the state.' The group made many inflammatory claims
* James H. Buck Harless and June M. Harless Professor of Law, West Virginia
University College of Law.
129 S. Ct. 2252 (2009).
2 Id. at 2265 (We find that Blankenship's [Massey's chairman and CEO] significant and
disproportionate influence--coupled with the temporal relationship between the election and
the pending case--offer a possible temptation to the average judge to lead him not to hold
the balance nice, clear and true. On these extreme facts the probability of actual bias rises to
an unconstitutional level. (internal quotation marks omitted)). In its analysis the Court
conclude[d] that there is a serious risk of actual bias-based on objec-
tive and reasonable perceptions-when a person with a personal stake
in a particular case had a significant and disproportionate influence in
placing the judge on the case by raising funds or directing the judge's
election campaign when the case was pending or imminent. The in-
quiry centers on the contribution's relative size in comparison to the
total amount of money contributed to the campaign, the total amount
spent in the election, and the apparent effect such contribution had on
the outcome of the election.
Id. at 2263-64.
' See id at 2257.
4 I.R.C. § 527 (2006).
' Caperton, 129 S. Ct. at 2257.
6 Id.


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