State judicial elections, which in many states have become contentious affairs attracting the attention – and the dollars – of powerful interest groups, may well have received a significant further nudge in this direction thanks to the U.S. Supreme Court. With the Court’s June 27 decision in Republican Party of Minnesota v. White, the efficacy of regulations that used to prevent judicial campaigns from threatening fair and impartial courts have been thrown into doubt. To place the White decision in context, this memorandum:
- summarizes the pre-White history of these regulations,
- describes what the Supreme Court decided in White,
- discusses the likely impact of White upon judicial candidate conduct, and
- outlines measures that can be taken in response.
To preclude judicial candidates from seeking votes by making campaign statements that compromise their impartiality, states have long regulated what judicial candidates can say about their future conduct on the bench. For the most part, these regulations have been based upon provisions contained in three model codes of judicial ethics promulgated by the American Bar Association (“ABA”):
- As early as 1924, the ABA proposed a model judicial conduct code providing that a judicial candidate “should not announce in advance his conclusions of law on disputed issues of fact to secure class support.” Only one state (Montana) still has a provision based upon this language.
- In 1972, the ABA promulgated a new provision, Canon 7B(1)(c), which provides that a judicial candidate should not “make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office” and should also refrain from “announc[ing] his views on disputed legal or political issues.” Today, nine states have judicial candidate speech regulations based upon both elements of this language, while three states employ only the “pledges or promises” clause.
- In 1990, the ABA retained the “pledges or promises” clause and promulgated Canon 5A(d)(ii), which forbids “statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” Twenty-five states have adopted this provision.
Notwithstanding the existence of these regulations, judicial elections in many states have lately become raucous and expensive affairs. State Supreme Court candidates raised 61% more in campaign contributions in 2000 than had been raised in 1998. In addition, interest groups and political parties intervened heavily in the 2000 elections, often with ads designed to avoid campaign finance disclosure requirements. In this dispiriting context, the Supreme Court decided White.
II. The White Decision.
In White, the Supreme Court considered the constitutionality of a provision of Minnesota’s Code of Judicial Conduct that prohibits a candidate for judicial office from “announc[ing] his or her views on disputed legal or political issues.” The Court, with Justice Scalia writing for a 5–4 majority, held that the clause violates the First Amendment.
Justice Scalia asserted that Minnesota’s “announce clause” could not be squared with the First Amendment because it was not narrowly tailored to promote the state’s interest in maintaining a fair and impartial judiciary. He first declared that “the traditional sense” of judicial impartiality is the requirement that a judge not favor one of the parties to a case.
The “announce clause.” however, does not promote this interest at all because it only forbids judicial candidates from expressing partiality as to issues and not with respect to parties that may come before a judge. Further, as to judicial impartiality beyond its “traditional sense,” Justice Scalia asserted that Minnesota had no compelling interest in restricting judicial candidate speech as to issues because “[a] judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. . . . [I]t is virtually impossible to find a judge who does not have preconceptions about the law.”
Finally, Justice Scalia discounted any possibility that judicial"openmindedness" will be compromised because candidates will feel pressured to live up to their campaign statements when they decide cases. In the first place, he asserted, campaign statements are merely “an infinitesimal portion” of the public statements of judges who must frequently announce legal positions in the context of deciding cases. Further, Minnesota’s Code of Judicial Conduct also forbids judicial candidates from making “pledges or promises” with respect to how they will conduct themselves on the bench, and this provision was not at issue in White.
III. The Impact of White.
The likely effect of the White decision should not be overstated. Judicial elections in many states saw aggressive campaign tactics before the case was decided. This trend continued after 2000 in last year’s hotly contested race for a seat on the Pennsylvania Supreme Court, in which a group funded largely by the National Rifle Association ran negative ads.
Further, it is important to remember what was not decided in White. The case concerned only the constitutionality of Minnesota’s “announce clause.” The Supreme Court did not review those parts of the lower court ruling that upheld other means by which Minnesota seeks to conduct judicial elections that do not impair the integrity of the bench. These include ethical rules forbidding judicial candidates from identifying themselves as members of a political party or from accepting a party’s endorsement.
In addition, White did not address provisions in codes of judicial ethics that bar candidates from disseminating false information about themselves or their opponent. The Court also specifically declined to express any opinion regarding the constitutionality of the provision for judicial speech about “cases, controversies or issues that are likely to come before the court” set forth in the 1990 ABA Model Code.
But White will almost certainly alter the content of judicial candidate speech. Although the Court did not disturb the provision of the Minnesota Code of Judicial Ethics that prevents judicial candidates from making “pledges or promises” regarding their future conduct on the bench, the Court disregarded the possibility that nonpromissory statements by judicial candidates can compromise judicial impartiality to a troubling extent.
Consider the issue of tort reform, which has been the most contentious issue in any number of recent state judicial elections. Under White, it seems that pro-tort reform business organizations and anti-tort reform trial lawyer groups will be able to demand that judicial candidates make general statements coming down on one side or the other on the issue without making a promise to rule on tort cases in a particular way. Even more troubling, judicial candidates will likely find it difficult to resist such demands because these organizations will likely make campaign contributions contingent upon a favorable response. In such an atmosphere, how can citizens have any faith that their elected judges will approach cases involving tort reform legislation in an impartial manner?
And tort reform is but one of a number of contentious legal issues that are currently being debated in any number of states. If White loosens restrictions on judicial candidate speech on tort reform, it also does so with respect to abortion, the death penalty, welfare reform, and a host of other “hot button” issues which will possibly come before a successful judicial candidate when he or she sits on the bench. What is therefore threatened is a comprehensive loss of public faith in the capacity of elected judges to decide upon the most important legal issues of the day in a manner faithful to the adjudicative ideals of fairness and impartiality.
IV. Practical Responses to White
Just as judicial elections were becoming more contentious and expensive before White, so efforts to reform them predated the case. White makes reform efforts even more urgent and there are a number of strategies that can be pursued:
- Amended Model Canons: The ABA has announced that it will be re-examining relevant model code provisions in light of the changes wrought by White. Developments may be monitored by visiting the Press Room on the ABA’s web site, http://www.abanet.org.
- Voluntary Campaign Conduct Standards: In a number of states, judicial candidates have mutually agreed to refrain from a range of campaign activities, including negative or inflammatory campaign rhetoric. Such an agreement can therefore serve as a sort of bilateral disarmament pact pursuant to which judicial candidates decline to engage in the sort of campaign speech that White now makes possible. A model here are the Higher Ground Standards for Judicial Candidates, composed by The Constitution Project and available at http://www.constitutionproject.org.
- Campaign Oversight Committees: In some states, non-governmental monitoring groups have been established to perform a variety of functions during judicial campaigns. Such groups can promulgate voluntary campaign conduct standards, issue responses to candidate queries regarding the propriety of particular campaign practices, arbitrate complaints made by candidates regarding the conduct of opponents, and issue statements of censure when candidates and other individuals and organizations that choose to intervene in a judicial campaign engage in conduct detrimental to the integrity of the judiciary. The membership of such groups varies widely, from committees affiliated with bar associations and composed of legal professionals to more inclusive groups.
- Candidate Debates: In Freeing Candidate Speech in Judicial Elections: Or, How Safe Are Loose Canons?, the Brennan Center discusses the pros and cons of debates between supreme court candidates. Given that White has expanded the scope of judicial candidate speech with respect to legal and political issues, it might be advisable to channel candidate pronouncements on these issues into the forum of a structured and civilized exchange.
- Campaign Finance Reform: The role of private money in judicial elections has been increasing exponentially in many states and, in the aftermath of White, private money will now be able to fund significantly more provocative judicial candidate speech. To address the issue of the influence of money on judicial elections, states may adopt a variety of campaign finance reform measures. Such efforts could include regulations requiring reporting of contributions to and expenditures by independent groups running campaign advertisements.
- Changing the Type of Judicial Election: There has been little recent movement toward non-elective systems in states with judicial elections. But the form of judicial election a state chooses may help to determine what the tone of those elections is likely to be. Historically, nonpartisan judicial races and retention elections have been less contentious and expensive than partisan and contested races, but these trends may be changing.
Another fruitful avenue in campaign finance reform is legislation providing for the public financing of judicial campaigns. The ABA has recently endorsed public financing of judicial campaigns and, shortly before White was decided, the Chief Justice of the Supreme Court of Ohio, which experienced a particularly fierce race for a vacant seat in 2000, issued a strong call for the enactment of public funding legislation. Bills providing full public financing for at least some judicial elections have been introduced in Illinois, North Carolina, and Wisconsin.