Limits on Judicial Elections: A Thing of the Past?

Author: Andrea Flaute, Associate Member, University of Cincinnati Law Review

From basic speech restrictions to an outright prohibition on personally solicited campaign funds, judicial candidates, prior to the decisions in Republican Party of Minnesota v. White and Williams-Yulee v. Florida Bar, lacked the basic leeway given to every other candidate to control their campaign.[1] In the wake of White, candidates in judicial elections are now permitted to speak freely about disputed legal and political issues.[2] However, the Supreme Court decision in Williams-Yulee maintained that those same judicial candidates are still barred from personally soliciting campaign funding.[3] Why, when the text of the First Amendment protects both actions, is this the case? The answer turns on the nature of our judicial system. We hold the officials of our judiciary system to a higher standard than most other professions because of the important role they play in the functioning of our government. These higher standards necessarily equate a reduction of some of an individual’s First Amendment rights. No state interest is compelling enough to quash the basic idea that a candidate for public office must be able to communicate his qualifications to the electorate. However, a state’s interest in preserving the impartiality of the judiciary is enough of a compelling interest, when narrowly tailored, to supersede an individual’s right to personally solicit campaign funding.

The Return of Free Speech

Despite the efforts of many—including former Supreme Court Justice Sandra Day O’Connor—to encourage states to appoint their judges, thirty-nine states still choose their judiciary by popular electoral vote.[4] These elections function much like the election of other political candidates, in that judicial candidates conduct campaigns and raise funds with the end goal of being chosen by the general public to hold office. However, until the Supreme Court’s decision in Republican Party of Minnesota v. White, judicial candidates were held to an arguably impossible standard of conduct during elections.[5]

It is not uncommon for states to have codes of conduct for judges once they are elected, but many states, like Minnesota, use to have extensive laws on the books limiting the speech, association, and fundraising ability of judicial candidates during their campaigns for office.[6] For example, Minnesota law included a provision known as the “announce clause,” which stated that a “candidate for a judicial office, including an incumbent judge…[could not] announce his or her views on disputed legal or political issues.”[7] Compared to traditional political candidates, who often focus their campaigns on hotly contested issues, this clause restricts judicial candidates from engaging in the type of debate that has almost come to be expected by American voters.

The Supreme Court’s 2002 landmark decision in White liberated a large portion of the speech restrictions that inhibited many judicial candidates and restored it to the level afforded other campaigns.[8] The Court held that states could not restrict judicial candidates from stating their opinions on disputed political or legal issues.[9] The ruling was based on the candidates’ First Amendment rights.[10] The Court determined that the “announce clause” was a content-based restriction that failed the strict scrutiny test because it prohibits speech based on its content without any superseding and compelling state interest.[11] The Court pointed out that the clause “burden[ed] a category of speech that is at the core of our First Amendment freedoms—speech about the qualifications of candidates for public office.”[12]

Prior to White, states sought to enforce the restrictions to preserve both judicial impartiality and the appearance of impartiality.[13] However, the Court reasoned that it is nearly impossible to select a judge that does not already have some preconceived notions about the law. Justice Rehnquist went as far as to say that “even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so” as a lack of a legal view on any given issue is evidence of a lack of qualification.[14] Further, the Court held that, while impartiality of the judiciary is highly important for the state, it cannot overcome First Amendment rights without proper tailoring.[15]

The Post-White Era

The White ruling opened many doors for judicial candidates. While restrictions still remain, judicial candidates need not fear disciplinary action from exercising the most important campaign-related speech: the candidate’s opinions and qualifications. Further, the Sixth Circuit, which is reflective of the norm, has invalidated other bans on judicial candidate speech including bans on the ability to answer questionnaires, identify with a political party, and campaign as a member of a political party.[16]

Now that judicial candidates have ample speech rights, many are challenging the validity of campaign funding restrictions under the same premise that restrictions on direct solicitation of funds violates their First Amendment rights, specifically their freedom of association. It is no question that individuals are permitted to exercise their freedom of association by contributing to their favorite political candidate. However, the issue is whether judicial candidates, keeping in mind their primary function, should be permitted to exercise their freedom of association by soliciting campaign funds.

A five to four decision from the Supreme Court determined that they should not freely maintain that right.[17] The Court held in Williams-Yulee v. Florida Bar that the state’s rule, which prohibits judicial candidates from personally soliciting campaign funds, does not violate the First Amendment.[18] The Court reasoned that the prohibition is narrowly tailored and serves the state’s compelling interest in preserving the integrity of the court and the public’s confidence in an impartial judiciary while still permitting  solicitation of funds through third parties.[19] The restriction survived the strict scrutiny test as it is applied evenhandedly to all judicial candidates and is specifically aimed at curbing the conduct proven most likely to undermine the integrity of the court and the public’s confidence in an impartial judiciary—personal requests for money by the candidate.[20] The Court frequently pointed to the state’s interest in maintaining the integrity of its judiciary and in preserving public confidence in judicial impartiality as compelling interests “of the highest order.”[21]

The Crossover Between Two Very Different Rights

Political candidates can say whatever they want in their campaigns with only minimal restrictions, such as those required under libel and defamation laws. This includes asking for monetary donations.[22] Following the White court’s expansion one could have expected personal, campaign solicitation prohibitions to be the next restrictions to be invalidated. However, as laid out in Williams-Yulee, judicial candidates are still far from being afforded the same latitude as political candidates when it comes to personally soliciting campaign funding.

The reason turns on the primary function of the judiciary and reasonable policy considerations. Judges are not representatives of the people. Their loyalty is supposed to lie with the laws of the United States of America and their respective states, and not with the interests of their donors. They are charged with impartially interpreting the law and applying it to the facts in front of them, not using their discretion to benefit their campaign donors.

There is ample evidence, whether documented or simply from everyday interactions, that money influences decisions.[23] Political campaigns operate at a level comparable to big business, and it is not hard to see why. All opinions aside, political candidates have the power to change laws that directly affect their donors, constituents or not. And money, especially in very large sums, can be influential in determining a course of action. Judicial campaigns, however, run contrary to every one of these notions. The judiciary does not seek to please constituents.

Allowing judicial candidates to personally solicit campaign funds fosters a personal connection between the donor and the candidate, a connection that is most certainly not going to be forgotten by the donor when he or she utilizes the judicial system. The pressure, direct or indirect, that a donor can place on a judge is enough of a reason to prohibit personal campaign finance solicitation. Most elected judges must also run for re-election to maintain their positions; so, the pressure to retain the support of donors is high. Combine that pressure with the extensive discretion given to judges to interpret the law the way they see fit and the margin for abuse grows tremendously. The restrictions upheld in Williams-Yulee do not prohibit the candidates from soliciting funds in general; they simply create a barrier between the money and the judge by forcing the solicitation to come from a third party.

Conclusion

However unfair the Williams-Yulee decision may seem at face value, the Supreme Court handed down a decision that is sustainable and in line with the expectations the American public has for judicial candidates. We, as a society whose lives are affected daily by judicial decisions, depend on our future judges to be impartial and appropriately uphold the law free from all outside influence.

Speech matters in judicial elections. The speech used to express the views of a judicial candidate matter when those views ultimately influence the judge’s interpretation of any given law. However, the intimate connection fostered by personally soliciting campaign funds is not a necessary element of finding a qualified judge. There is little to be gained in allowing a judicial candidate to personally solicit funds, especially weighed against the risks that are associated with the practice. The First Amendment protections of freedom of speech and freedom of association are important, but the foundation of our judicial system rests on impartiality. When legislatures have crafted a narrowly tailored rule to preserve these crucial pillars of justice, without encroaching on candidates’ fundamental rights, we must follow that rule.

[1] Compare Ohio Code of Judicial Conduct, Cannon 4 and O.R.C. §3517.01-§3517.993. See also Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806 (2011) (emphasizing the importance of alleviating undue burdens on political speech from privately funded candidates).

[2] Republican Party of Minnesota v. White, 536 U.S. 765 (2002).

[3] Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015).

[4] Decision, Thoughts on Safeguarding Judicial Independence: An Interview With Justice Sandra Day O’Connor, 35 Litigation 6; Williams-Yulee, 135 S. Ct. at 1658 (2015).

[5] White, 536 U.S. 765 (2002).

[6] Minn. Judicial Code of Conduct, Canon 5(A)(3)(d)(i) (2000).

[7] Id.

[8] 536 U.S. 765 (2002).

[9] Id.

[10] Id. at 781.

[11] Id. at 774; Any governmental restraint on a fundamental constitutional right must survive the strict scrutiny test. The strict scrutiny test requires a restriction to be narrowly tailored and serve compelling state interest in order to be valid. Footnote 4, United States v. Carolene Products Co., 304 U.S. 144 (1938).

[12] Id. at 774 (quoting Republican Party v. Kelly, 247 F.3d 854, 861 (8th Cir. 2001)).

[13] Id. at 775.

[14] Id. at 778.

[15] A narrowly tailored restriction is attained when the means chosen to accomplish the governments asserted purpose for the restriction are specifically and narrowly framed to achieve that purpose, and that purpose only. Grutter v. Bollinger, 539 U.S. 306, 333 (2003); A blanket prohibition of speech on legal and political issues is not narrowly framed enough to achieve the stated purpose of maintaining judicial impartiality as it does not focus on the specific speech that causes partiality.

[16] Family Trust v. Wolnitzek, 345 F. Supp. 2d 672 (E.D. Ky. 2004); Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010); Winter v. Wolnitzek, 56 F. Supp. 3d 884 (E.D. Ky. 2014).

[17] Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015).

[18] Id.

[19] Id.

[20] Id. at 1668.

[21] Id. at 1666.

[22] Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014).

[23] Lillian R. BeVier, Money and Politics: A Perspective on the First Amendment and Campaign Finance Reform, 73 Cal. L. Rev. 1045 (1985); Laura I. Langbein, Money and Access: Some Empirical Evidence, 48 J. Pol. 1052 (1986).

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