Howard J. Bashman's appellate columns, etc.

Money, Judicial Elections, And The First Amendment

By Howard J. Bashman
Monday, August 8, 2005
Last week, the U.S. Court of Appeals for the Eighth Circuit sitting en banc ruled that Minnesota's cannons of judicial conduct applicable to candidates seeking election to judicial office violate the First Amendment in two significant respects.

First, the court struck down a restriction that prohibited candidates for election to judicial office from publicizing their political party affiliation or seeking a political party’s endorsement. And second, the court struck down a restriction that prevented candidates from personally soliciting campaign contributions.

A dissent from last week's ruling notes that twenty–four states, including both Minnesota and Pennsylvania, prohibit candidates seeking to be elected as judges from personally soliciting campaign contributions, while just six states permit such personal solicitations. Thus, while last week's Eighth Circuit ruling only directly binds the seven States located within that federal appellate court's geographical boundaries, the decision's reasoning, to the extent other courts find it persuasive, could significantly affect the way judicial campaign fundraising is conducted across the Nation.

Last week's ruling from the en banc Eighth Circuit was not even the first especially important judicial election–free speech ruling to arise from that Minnesota case. The very same case produced a U.S. Supreme Court decision in 2002 holding that candidates for judicial election have a First Amendment right to announce their views on disputed legal and political issues.

Before last week's ruling, Minnesota was one of many States in which candidates for elective judicial office had to conduct fundraising through committees consisting of others. In practice, a candidate for judicial office could meet with potential supporters to discuss his or her candidacy, but the candidate was prohibited from either personally requesting campaign contributions or sending out written solicitations over his or her signature requesting campaign contributions.

At in–person meetings with judicial candidates, only after the candidate had left the room could someone from his or her staff request campaign contributions. And written solicitations carried the signature of someone on the candidate's campaign committee, instead of the signature of the candidate himself or herself.

The en banc Eight Circuit's majority opinion explained that Minnesota's restriction on personal solicitation of funds by candidates for judicial office was subject to strict scrutiny under the First Amendment for two related reasons. First, the restriction was content–based, and content–based restrictions on speech are traditionally subject to strict scrutiny under the First Amendment. And second, because the restriction "applies to requests for funds to be used in promoting a political message," strict scrutiny is appropriate because "promoting a political message requires the expenditure of funds."

After concluding that strict scrutiny was the appropriate constitutional standard of review to apply to the direct fundraising solicitation ban, the Eighth Circuit's majority opinion stated: "Since strict scrutiny is clearly invoked, the solicitation clause must also be narrowly tailored to serve a compelling state interest. Minnesota asserts that keeping judicial candidates from personally soliciting campaign funds serves its interest in an impartial judiciary by preventing any undue influence flowing from financial support."

The Eighth Circuit's majority opinion concluded that the ban on personal solicitation of campaign funds could not survive strict scrutiny review because a separate, unchallenged provision of Minnesota's cannons of judicial conduct prevented a judicial candidate's campaign committee from disclosing to the candidate the identities of campaign contributors. And if the judicial candidate did not learn the identity of campaign contributors, the majority reasoned, then the ban on personal solicitation of campaign contributions was not narrowly tailored to serve the State's compelling interest in unbiased and open–minded judges.

Yet in the very same en banc ruling, both the majority opinion and the dissent noted that, in Minnesota, the identities of contributors to judicial campaigns are publicly available over the internet from the Minnesota Campaign Finance and Public Disclosure Board. And there are many other ways that a candidate for judicial office may learn about the identity of campaign contributors even if his or her campaign committee did not inform the candidate directly. Moreover, in some States, including Pennsylvania, there is no limit on the amount of money that someone may contribute to a candidate for elective judicial office. The bigger the contribution, the more difficult it becomes to keep the contributor's identity a secret.

The concern that a judicial candidate will feel beholden to campaign contributors is quite troubling, and yet a prohibition on campaign contribution solicitations does not directly influence the extent to which a judicial candidate will feel that he or she, after attaining judicial office, ought to rule in a manner that financial supporters of the judge's campaign would prefer.

Anyone who achieves judicial office, whether by election or appointment, may feel indebted to those responsible for helping him or her attain office. Yet the expectation is that the judge will either be able to put aside such feelings when deciding how to rule on a case or will recuse from participating if the judge cannot approach the case in an unbiased manner due to who was involved in helping the judge reach office.

As I have recently written in an article about judicial recusal that will be published in a forthcoming issue of the Journal of Appellate Practice and Process, "An appellate judge who, once elected to office, sought to repay supporters by means of favorable rulings would assuredly be acting in an unethical manner. But the overarching question is whether the appellate judge's impartiality might reasonably be questioned [based on campaign contributions], and that issue can be endlessly debated."

Nearly four years ago, my September 2001 monthly appellate column carried the title "Pennsylvania Should Keep, But Reform, Its System Of Electing Appellate Judges." In that column, I advanced two proposals that seem especially relevant in the aftermath of last week's Eighth Circuit decision striking down prohibitions on the personal solicitation of campaign contributions by candidates for judicial office:

"Currently, supporters of candidates for judicial office in Pennsylvania can make unlimited campaign contributions. And, the rules governing whether an elected judge can participate in a case involving attorneys or parties who contributed to the judge's election campaign contain few bright lines. To eliminate the unseemly impression some may have that judicial candidates are for sale, Pennsylvania should adopt judicial campaign contribution caps that are at least as strict as those that govern candidates for Congress. The rules of judicial conduct should further make clear that a judge who has received contributions in excess of those limits from an attorney or a party must recuse himself or herself from deciding any case involving the attorney or party.

"Pennsylvania should also consider offering matching campaign funds to judicial candidates who are willing to adhere to specified limits on campaign spending. While the U.S. Supreme Court has declared unconstitutional mandatory campaign spending limits, spending limits that candidates elect to observe, encouraged by matching campaign funds, appear to be lawful."

Last week's en banc Eighth Circuit decision in my view reached the correct result concerning whether prohibiting a judicial candidate from personally soliciting campaign contributions violates the First Amendment. But there remain lawful ways to limit the improper influence that campaign contributions could exert on someone who has successfully campaigned for elective judicial office, and States that elect judges should examine enacting limits on campaign contributions and encouraging limits on campaign expenditures.

This article is reprinted with permission from the August 8, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.