Selling or funding democracy? ABA on money and judicial elections

March 2015 | Around the Midyear Meeting

State judicial elections were once humdrum. Not anymore. The United States Supreme Court will weigh in during its current session on Williams-Yulee v. Florida Bar over whether the First Amendment allows states to ban fundraising by judicial candidates.

At issue is whether contributions have an undue influence on judges or are inherent to the inviolable rights of all candidates. This will be the high court’s second foray into First Amendment limitations on the authority of state supreme courts to regulate judicial elections.

At issue is whether contributions have an undue influence on judges or are inherent to the inviolable rights of all candidates.

The issues raised by campaign funding in judicial campaigns was the subject of a Feb. 6 panel, “Selling or Funding Democracy? When Judges Have to Raise Election Money,” at the ABA Midyear Meeting in Houston.  The panel was sponsored by the ABA Section of Individual Rights and Responsibilities, Judicial Division, Section of State and Local Government Law and Standing Committee on Election Law.

Speakers included James J. Alfini, professor, South Texas College of Law; James Bopp Jr., The Bopp Law Firm; Thomas R. Phillips, former chief justice, Supreme Court of Texas; and moderator Claire Rajan, co-chair, ABA IRR First Amendment Rights Committee.

It’s rare that mystery novels feature in such a discussion, but Alfini, who served on the ABA Joint Commission to Evaluate the Model Code and whose work resulted in the 2007 Model Code of Judicial Conduct adopted by the House of Delegates, said that John Grisham’s novel, “The Appeal,” was relevant.

The story features a naïve lawyer who is elected by interests that want him to vote against plaintiffs suing a company that knowingly polluted local waters with carcinogenic material. The twist comes as the judge must reassess his position when his son is permanently injured by a defective medical product.

One of Grisham’s characters sums up the situation: “Politics has always been a dirty game. Now justice is, too.”

Alfini is wary of the politicization of judicial elections, noting that retired Justice Sandra Day O’Connor, who voted with the majority in the first case, the landmark 2002 Republican Party of Minnesota v. White, later said that she regretted that vote, which struck down Minnesota’s “announce” clause.  The case granted candidates in judicial elections a First Amendment right to take positions on questions of public policy, even though many state codes of judicial ethics bar such behavior under what are called “announce” clauses.

Alfini said that having judges run for office may mean that “they can sometimes cross a line in trying to get elected.”

Today, 39 states elect some or all of their judges, and most bar all judicial candidates from soliciting campaign contributions personally. 

The high court repeatedly has struck down rules — long accepted— to limit campaign fundraising for legislative and executive candidates. A further reaching could be in store with Williams-Yulee v. Florida Bar.

Bopp, the lawyer who successfully argued Republican Party of Minnesota v. White, argued that a “big picture that put the situation of how judges were selected and retained into context” was needed. He said that “independence and accountability” were not jeopardized by overturning such limitations.

Bopp was lead counsel for Citizens United in Citizens United v. Federal Election Committee, which struck down McCain-Feingold’s electioneering provisions and prohibitions on corporations advocating the election or defeat of candidates.

Phillips, who was featured in the Frontline news program, “Selling Justice,” said that he never liked raising money, “either asking for it or getting it,” but appreciated the strategy and discipline of communicating to a public not steeped in legal issues and nuance.”