Judicial campaign codes after Republican party of Minnesota v. White.

• Author: Briffault, Richard
• Position: Symposium: The Law of Democracy

INTRODUCTION

The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states. (1) By one count, 87% of the state and local judges in the United States have to face the voters at some point if they want to win or remain in office. (2) Judicial elections, however, differ from elections for legislative or executive offices in a number of significant ways. In nineteen states, most judges are initially appointed but must later go before the voters in a so-called retention election--in which there is no competing candidate but voters are asked simply whether they approve of the incumbent--in order to keep their positions. (3) In twenty of the states that provide for electoral contests between competing judicial candidates, some or all judicial elections are nonpartisan, even though candidates for other state offices are elected on party lines. (4) Most strikingly, virtually all states that provide for judicial elections also impose campaign codes that restrict the election-related activities of judicial candidates to a far greater extent than these states regulate the campaigns of executive and legislative candidates. Generally adopted by rule of the state's highest court rather than by statute, these codes, inter alia, limit what judicial candidates may say in their campaigns, restrict how they raise campaign contributions, and curtail their ability to engage in partisan political activities other than support for their own candidacies.

In 2002, the United States Supreme Court sharply called into question the constitutionality of state judicial campaign restrictions. In Republican Party of Minnesota v. White, (5) a closely divided Supreme Court invalidated the provision of the Minnesota Code of Judicial Conduct that precluded judicial candidates from "announcing" their views concerning disputed legal and political questions. White found that the First Amendment applies to a judicial campaign code and, therefore, the code's restriction on campaign speech should be subject to strict judicial scrutiny. The Court cast doubt on the primary rationale for the campaign canons--preserving the impartiality and the appearance of impartiality of the state judiciary (6)--and expressed skepticism with regard to the notion that even if judicial impartiality is a compelling state interest, that interest may be advanced by campaign speech restrictions. (7) Moreover, the Court emphasized the positive value of enabling judicial candidates to express themselves on disputed political and legal questions. As the Court stated, those are "what the elections are about." (8)

Although Justice Scalia's majority opinion observed that "we neither assert nor imply that the First Amendment requires campaigns for judicial office to sound the same as those for legislative office," the Court also pointedly declined to find that the First Amendment allows greater regulation of judicial election campaigns than of other elections. (9) Rather, noting the important lawmaking role of American courts, the majority concluded that the dissenters "greatly exaggerate[d] the difference between judicial and legislative elections." (10) White's treatment of the judicial impartiality rationale and its application of the narrow tailoring requirement raise questions about whether any judicial campaign restriction could pass strict scrutiny. The decision casts a shadow of unconstitutionality over the entire project of judicial election campaign regulation.

In the eighteen months since White, federal courts have held unconstitutional a number of state judicial campaign restrictions that were not at issue in White. (11) Similarly, a number of state courts have revised their canons, including provisions not at issue in White, to make them less restrictive. (12) To be sure, many state courts have retained their canons and have rejected First Amendment challenges to the restrictions on judicial campaign and partisan political activities that the canons impose. (13) But the constitutionality of the state canons that subject judicial campaigns to greater regulation than legislative or executive campaigns remains uncertain.

In this Article, I will consider three questions raised by White. First, does the Constitution require that all elections be run according to the same set of rules? That is certainly the implication of those judges and commentators who have argued that, having chosen to select or retain judges by election, the states must abide by the constitutional requirements that apply to elections. (14) However, as I will discuss in Part I, the Supreme Court has repeatedly upheld variations in the constitutional norms that govern a number of the fundamental features of elections. Indeed, the constitutional rules of elections may differ according to what is at stake in the election. If campaign practices that are unexceptionable (or even constitutionally protected) in the context of legislative or executive elections have a distinct and harmful impact on the judicial function, then they can be restricted in judicial election campaigns.

Second, even if it is theoretically legitimate to apply rules to judicial campaigns that are more restrictive than those that govern executive and legislative elections, are the specific rules in the state judicial conduct codes constitutional? These canons preclude judicial candidates from making "pledges or promises" or other statements that "commit or appear to commit" candidates with respect to cases or legal issues; (15) penalize misrepresentations and misleading statements; (16) bar judges and judicial candidates from personally soliciting campaign contributions; (17) and restrict partisan political behavior. (18) Although White noted that Minnesota's "pledges or promises" clause was not at issue in that case, (19) two decades earlier the Court had held in a nonjudicial election that the First Amendment protects the freedom of candidates to make campaign promises. Moreover, even before White, the lower federal courts and state courts had been troubled by the canons' penalties for misrepresentations. Since White, two courts have invalidated restrictions on personal solicitation and partisan political behavior. (22)

In Part II, I will sketch out a general framework for thinking about the regulation of election campaigns and, more specifically, of judicial election campaigns. I will indicate that the Supreme Court has repeatedly upheld campaign regulations, even those that trench on the free speech rights of candidates and their supporters, when those regulations promote other important values, such as improving the quality of the electoral process or enhancing the integrity of government. I will suggest that the special nature of the judicial function can justify restrictions on campaign conduct that would not be constitutional in the nonjudicial setting.

In Part III, I consider some of the specific campaign conduct canons that have been subject to legal challenge in recent years. I will argue that restrictions on campaign "pledges or promises" and "commitments" are constitutional, even though comparable restrictions on legislative and executive candidates would be unconstitutional. To be sure, some current versions of these restrictions are subject to challenge as vague or overly broad. But the basic idea that judicial candidates can be precluded from making statements that indicate that they have prejudged cases or issues that are likely to come before them as judges is sound.

The canon dealing with misrepresentations presents a different question. It is difficult to see what in the nature of judging requires judges to be held to a higher standard of honesty than other public officials. But it may be that properly defined restrictions on misrepresentations would be constitutional with respect to candidates for any elected office, even if in practice such restrictions are aimed primarily at judicial candidates.

Restrictions on candidates' personal solicitation of campaign contributions and partisan political activity also ought to be treated as constitutional. These restrictions advance the compelling public interest in judicial impartiality and independence. Moreover, these rules affect only campaign behavior. They do not affect the content of candidates' campaign statements and, thus, cut less deeply into the candidates' freedom of expression while also avoiding the reduction in voter information that might result from restrictions on campaign statements. As a result, these restrictions ought to be upheld as constitutional, White notwithstanding.

Finally, even if these canons are constitutional, the question remains whether they are likely to be effective in reconciling the competing goals of informed voter decision making, vigorous competition, and judicial impartiality that together frame the debate over the regulation of judicial election campaigns. My sense is that the benefits of the canons are modest at best. Other forces, including the growing costs of judicial election campaigns and the increasing involvement of interest groups in judicial elections, (23) are likely to swamp the effects of continued enforcement of the canons. As I will discuss in the Conclusion, the quality of judicial elections and the impartiality of judicial decision making might be better advanced through other devices, particularly public funding of judicial elections and the exclusion of judges from cases where their campaign statements indicate they have prejudged the outcome.

1. ALL ELECTIONS ARE NOT ALIKE: THE VARIATION IN ELECTION RULES ACCORDING TO THE PURPOSE OF THE ELECTION

   One strand in the debate over judicial campaign rules essentially relies on the argument that, although there is no requirement that judges be elected, when a state "opt[s] for an elected judiciary,"24 the...