Judicial campaign speech restrictions: some litigation nuts and bolts.

AuthorWeber, Walter M.
PositionIssues Facing the Judiciary

Litigators confronting a new area of law must come quickly up to speed on the pertinent substantive and procedural issues. The purpose of this article is to give practitioners a jump-start in the context of constitutional challenges to restrictions on the speech of candidates for judicial office. For ease of reference, an appendix to this article lists, and very briefly summarizes, most, if not all, of the published decisions on the subject. (1)


    Restrictions on what a candidate for judicial office may or may not say vary from state to state. Nevertheless, the most frequently litigated restrictions tend to fall into several main categories.

    1. "Announce" Clauses

      An "announce" clause typically directs a candidate for judicial office not to "announce his views on disputed legal or political issues." (2) The Supreme Court has held the Minnesota version of this clause unconstitutional. (3)

    2. "Commit" Clauses

      A "commit" clause typically directs a candidate for judicial office not to "make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court." (4)

    3. "Pledge or Promise" Clauses

      A "pledge or promise" clause typically directs a candidate for judicial office not to "make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." (5)

    4. "Misrepresent" Clauses

      A "misrepresent" clause typically directs a candidate for judicial office not to "misrepresent his identity, qualifications, present position, or other fact." (6)

    5. "Mislead" Clauses

      Several states proscribe speech by judicial candidates that would be "misleading," though the scope and elements of this restriction vary. (7)


    Constitutional challenges to state restrictions on the speech of candidates for judicial office arise in one of two postures: as affirmative challenges, (8) or as defenses to disciplinary proceedings. (9) An affirmative challenge would be brought by a candidate who fears speaking because of the potential of disciplinary consequences. (10) Such an affirmative challenge could be brought in either state or federal court. A candidate's defense to ongoing disciplinary proceedings, by contrast, would necessarily take place in the state forum (either an administrative agency or a court) assigned the responsibility to hear such proceedings.

    As noted below, the posture of the challenge can affect what strategic options are available to the challenger--the candidate--and to the defender--the state disciplinary authority. The challenger whose speech may run afoul of state restrictions often has the capacity to select the posture and the forum (state or federal) by making a decision: either speak and await the initiation of disciplinary action, or refrain from speaking and instead bring an affirmative challenge. Of course, this choice may not be conscious. For example, if the initiation of disciplinary action was unforeseen, the candidate may be taken by surprise and forced into a defensive posture. Conversely, the disciplinary authority may decline to "take the bait" offered by a candidate who presses to or beyond the facial boundaries of a speech restriction, preferring instead to await a more egregious or strategically attractive incident.


    In theory, the constitutionality of a restriction on speech is independent of the posture and forum of the challenge. Thus, for example, a limitation on campaign speech that is constitutionally overbroad is equally invalid whether the overbreadth objection is raised in a challenger's complaint or a challenger's answer.

    Nevertheless, there are technical issues that may create obstacles to a court ever reaching the merits of a constitutional challenge. In other words, a savvy disciplinary authority may, in some circumstances, defeat a constitutional challenge without ever getting to the legal merits.

    1. In State Court

      State courts of general jurisdiction enjoy a plenary capacity to reach the universe of legal issues. Administrative bodies, however, sometimes have sharply limited authority. Thus, in some states, the agency hearing disciplinary matters will lack jurisdiction to review the constitutionality of a state's restriction on the speech of judicial candidates. (11) If this is the case, the challenger may have to wait for an appeal before being permitted to raise the question of the speech restriction's constitutionality. Such an obstacle, however, is only temporary, as it merely delays the constitutional question until the matter goes up on review. (12)

    2. In Federal Court

      Federal courts, as courts of limited jurisdiction, cannot adjudicate cases unless they overcome the miscellany of constitutional, statutory and judge-made limits to the exercise of federal jurisdiction. A number of these limits can come into play in the context of an affirmative challenge to a state law restriction on speech.

      1. Standing and Ripeness

        To secure a federal adjudication, a challenger must demonstrate standing to sue, i.e., must show a concrete threat of harm flowing from the challenged restriction. There need not already be an ongoing enforcement proceeding against the challenger. (13) (Indeed, if an enforcement action is underway, this may preclude a federal lawsuit.) (14) But if the alleged fear of disciplinary action lacks credibility (e.g., because it relies upon an improbable construction of the restriction), or if the threat of disciplinary proceedings appears temporally remote and contingent (e.g., the challenger may be a candidate in some future election but has not yet decided when to run), the challenge may be rejected for want of standing or ripeness. (15)

      2. Abstention

        If there is an ongoing state enforcement action against the candidate, the case is plainly ripe, and the challenger has standing. Nevertheless, under the doctrine of Younger abstention, (16) the federal court must (with very few exceptions) (17) abstain from hearing the candidate's federal challenge where state enforcement proceedings are underway. (18) This doctrine safeguards the ongoing state enforcement of state laws against federal interference. (19) Thus, to avoid Younger abstention, the challenger must generally file suit in federal court before any state enforcement proceedings have been initiated against that candidate. (20)

        Even if there is no pending state enforcement action, an unsettled question of state law may persuade a federal court to abstain. Under Pullman abstention, if there is a possible construction of state law that would eliminate the federal question presented in the federal case, the federal court may direct the challenger to bring an action first in state court to resolve the unsettled predicate state law issue (e.g., whether the limitation even applies to the speech the candidate wishes to utter). (21) If the federal court chooses to abstain under Pullman, then only after the state law issue is resolved--and then only if the state law resolution does not eliminate the federal question--may the challenger return to federal court. (22) Unlike Younger abstention, which is mandatory, Pullman abstention is merely discretionary. (23)

      3. Mootness

        Campaigns for office end on Election Day. If a challenger does not bring the lawsuit in time, the case may become moot and thus unfit for federal court adjudication. Even a pending suit may become moot if no court decision is rendered prior to the election. (24) Of course, if the candidate has not merely refrained from speaking, but has made an utterance that might trigger subsequent disciplinary action, the case would not become moot unless and until the threat of disciplinary action disappears. (25) This would happen, for example, when the disciplinary authority officially declines to pursue the matter (which may or may not be after the election date). Also, if the candidate plans to run again, the matter may escape mootness because of its capacity for repetition. (26)

      4. Res Judicata and Rooker-Feldman

        If a state court has already rejected a candidate's constitutional challenge to a speech restriction, and the state case has reached a final judgment, two additional doctrines may preclude a federal court challenge. Res judicata bars the relitigation of matters that were or could have been raised in a state proceeding, (27) and the Rooker-Feldman doctrine (28) bars lower federal court review (29) of state court judgments. (30)

    3. Note on Narrowing Constructions

      It bears mention that state and federal courts have different interpretive authority over state law. State courts enjoy considerable power authoritatively to reinterpret (31) (or, in the case of court rules, even amend) (32) state law in an effort to alter or avoid a constitutional challenge. The state court's ultimate view of the meaning of a state law is then binding upon federal courts. Federal courts, by contrast, cannot definitively say what state laws mean. Rather, federal courts are obliged to ask whether a saving construction is fairly possible in order to defeat a facial challenge to a state restriction. (33)

      Thus, where a candidate attacks the alleged overbreadth or vagueness of a state's restriction on the speech of candidates for judicial office, a state court may be able to indulge a rather dramatic reinterpretation of the limitation, thereby reducing or eliminating the asserted objectionable features. One consequence of a limiting construction might be to exclude the challenger's speech from the scope of the newly limited prohibition, which presumably would be a practical victory for the challenger. (34) On the other hand, a state court may authoritatively decline a limiting construction, thereby dooming a restriction that arguably could have been saved.

      By contrast, federal courts enjoy considerably less freedom to save state laws by...

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