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Republican Party of Minnesota v. White: What Does the Decision Mean?

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.
I. Judi­cial Speech Regu­la­tion Before White

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.
In addi­tion, four states with judi­cial elec­tions have regu­la­tions that are distinct from any of the ABA versions, while one (Idaho) has no judi­cial candid­ate speech regu­la­tion at all.

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,
  • 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.consti­tu­tion­pro­
  • 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.

  • 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.

  • 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.