Oregon State Bar Bulletin NOVEMBER 2015
A U.S. Supreme Court decision in April pertaining to judicial elections and campaign financing took Court watchers by surprise.
In Williams-Yulee v. The Florida Bar, the Court upheld a Florida rule prohibiting judges and judicial candidates from personally soliciting campaign contributions. The Court held that Florida’s ban on the personal solicitation of campaign funds by candidates for judgeships does not violate the First Amendment.
The reactions to that ruling varied, but all shed light on the conflict that’s involved in weighing judges’ free speech rights versus protecting the integrity of the courts.
At a time of rising spending in judicial elections, rules that preserve the public’s confidence in the judiciary are more important than ever,” says Matthew Menendez, counsel at the Brennan Center for Justice at NYU School of Law. “As the Court found, campaign contributions can create an appearance and risk of favoritism. This decision allows states to protect the fairness of our courts.”
The Brennan Center and others argued in an amicus brief that states have a duty to protect the integrity of their courts and that when judges personally solicit campaign money, it creates the perception that they may favor a particular contributor in a future case or disfavor lawyers and litigants who choose not to contribute or are not solicited.
What astounded many observers was that Chief Justice John Roberts joined the Court’s liberal justices in a 5-4 decision, whereas in previous cases about similar issues, he had voted in favor of free speech. But in Williams-Yulee, he stated that judicial elections are different.
“Judges are not politicians, even when they come to the bench by way of the ballot,” he wrote. “And a state’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A state may assure its people that judges will apply the law without fear or favor — and without having personally asked anyone for money.”
“I remember wanting to stand and cheer,” retiring Oregon Justice Virginia L. Linder says of the Court’s decision. “I think the Yulee case was a breath of fresh air from the Court. States do have a legitimate interest” in protecting both the perception and reality of judicial independence.
Former Oregon Supreme Court Justice W. Michael Gillette, now practicing with Schwabe, Williamson & Wyatt, concurred. He says judges and courts “have to persuade people based on the public’s trust in our inherent integrity.” Thus, the state is entitled to make rules for judges and judicial candidates that don’t apply to anyone else, he says.
Former Oregon Supreme Court Justice Robert D. Durham disagreed with the Court’s ruling. He says Williams-Yulee was inconsistent with prior free speech decisions protecting political speech by candidates for judicial and other offices. In his view, the opinion represents “lazy thinking, because the Court simply ignored its own cases that uniformly invalidate overbroad speech restrictions, and never considered whether Florida could adequately protect its valid interests through an effective recusal provision, or some other administrative solution — which would include, for example, public disclosure of contributors, amounts contributed and other similar information — without simply forbidding political speech.”
He agrees with the Court that judges must be independent and act neutrally and dispassionately in office, that appearance of neutrality is important, and that the Court was right in concluding that when a candidate solicits campaign money, it amounts to exercising free speech. But, as Durham wrote in an essay on Scotusblog.com: “The majority’s hasty answer overlooked the ability of state rule drafters to develop stringent and effective recusal procedures that would protect the public and the courts without offending the right of judicial candidates to speak to their supporters without legal restrictions on the substance of their political speech.”
“To some extent, Roberts’ comment is a legal fiction,” contends Charles F. Hinkle, a retired lawyer with Stoel Rives and a prominent free speech advocate. “We would like to think judges are not politicians,” he says. But “anybody who runs for office, because they have to persuade the public that they should be elected,” is acting as a politician by definition, he says.
A system of electing judges implies a campaign, and running for election requires money. Hinkle maintains the position that as long as a state insists on selecting its judges through elections, “the government has no business restricting speech. Why should a judicial candidate have to operate under a different set of qualifications? If we require them to run, it is anomalous to forbid them” from directly soliciting money.
Under Oregon’s Code of Judicial Conduct, judges and judicial candidates cannot “personally solicit or accept campaign contributions other than through a lawfully established campaign committee,” with the only exceptions being accepting campaign contributions from members of the judges’ own family and other judges over whom the candidate does not exercise supervisory or appellate authority.
But Gregory Chaimov, a First Amendment expert and an attorney with Davis Wright Tremaine, doesn’t think the added layer of requiring a campaign committee is needed. “I see no legitimate reason to require judges to raise money through a committee,” he says. “I don’t think it makes the public think the system is any more fair” than if the candidate asked directly for contributions. “In terms of the public’s perception of the legitimacy of the policy, I don’t see a distinction.”
Neither does Circuit Court Judge Douglas Van Dyk of Clackamas County, who has served on the Judicial Conduct Committee of the Oregon Judicial Conference. He supports the rule against direct soliciting by judicial candidates, but at the same time he wonders if “some of these proscriptions are a Potemkin village.” The rules are meant to avoid the public perception of venality or graft but, he asks, “Are we being honest with the public, or trying to create a false appearance?”
For instance, when attorneys serve on a judicial candidate’s campaign committee, “there’s a certain goodwill that’s inevitably attached to it.” Also, judicial candidates are allowed to ask lawyers and law firms to support or endorse them, he points out. “Some goodwill attaches to those who support” the candidate. “So all we’re guarding is the public perception.” As for the prohibition on directly asking for money, “I think it’s a good thing, but I can’t help but scratch my head about it.”
Oregon Attorney General Ellen F. Rosenblum says, “I’ve never been in favor, and still am not, of judges directly soliciting.” Using a committee to fundraise is “not perfect, but it’s better than direct solicitation. We need to protect public confidence — that’s all we have. I don’t see it as infringing on the First Amendment.”
When Linder was running for her seat, she would visit law firms and answer questions, then leave while someone on her campaign remained to ask for contributions. She says that feels awkward, but “it’s much better than looking at a lawyer and saying, ‘Can you write me a check?’ It may not seem like a distinction, but not personally asking lawyers if they want to make a contribution, and not being there when someone else asks, feels a lot more comfortable. The wall may feel thin, but it’s still important to me. I spent 17 years as a lawyer; if I were them, I’m sure I would feel more comfortable not being asked personally by a judge or judicial candidate for a contribution.”
Provisions such as prohibiting direct soliciting “are our state’s way of trying to have the system preserve judicial integrity and its appearance,” says Linder. “The code has a role, but it is more of one in fostering a culture — or maybe in Oregon’s case, preserving a culture — of the kind of professionalism, neutrality and integrity that reflects well on judges and the role they serve. I’m not sure the public is much influenced by the code itself; few are probably ever exposed to its provisions. But the bench and bar culture is.”
Timothy J. Sercombe, a judge on the Oregon Court of Appeals who ran unsuccessfully for a contested open seat on the Oregon Supreme Court in 2012, says his experience in that election reinforced for him the demands and drawbacks of fundraising required to run for an appellate court position.
“You need to get big chunks of money to be able to communicate on a statewide basis, to tell folks why they should vote for you,” he says. “It’s difficult and expensive to run a statewide judicial campaign, and it poses a particular challenge in that voters have less information about how courts work, from which to make political judgments, than they do about what their state legislator or governor is doing,” he says.
And, for Sercombe, that is where the problem lies. In order to be successful, a candidate needs to raise large amounts of money from single sources. “My concern is that it’s hard to raise enough money to do that without obtaining significant amounts from persons who have interests in matters that come before the court. If that’s the necessary ingredient for success, it comes at a cost. It makes a judge somewhat beholden to that source of money, that contributor. That’s not what we elect judges to be. It’s important to be unbiased.” Raising “big chunks from single sources will come at a cost to the judiciary,” he concludes. “That’s the concern I have now about the way we elect appellate judges.”
Elections and More Money
Contested elections to appellate court positions have been uncommon in Oregon. Traditionally, judges who plan to retire or step down from the court give notice and quit before their term ends, allowing the governor to appoint a replacement. That replacement then must stand for election, but generally no opponent files to run and the judge is elected without opposition.
That tradition may be ending. Linder points out that, on the current Oregon Supreme Court, four justices have come on the court by election, and three out of the last four of those elections were contested. In her first campaign for the high court, Linder, like Sercombe, participated in a three-way race, and total cash and in-kind spending by her and her two opponents in the 2006 primary and general elections combined came to just over $1.4 million.
Pennsylvania’s 2015 judicial primary race for the state supreme court saw at least $2.4 million spent just on television advertising, and reportedly more than $5 million in candidate fundraising. Sercombe says that in his three-candidate 2012 race for the Oregon Supreme Court, he received contributions from several hundred people, but he had to use most of that money to pay his campaign staff, and “there was not much left to publicize” his candidacy.
The Brennan Center records that 39 states directly elect at least some members of the judicial branch, though each makes its own laws governing campaign finance and ethics rules for judges. For example, in New York, judges are prohibited from taking part in court proceedings involving donors to their campaigns. According to the National Institute on Money in State Politics, New York has one of the most restrictive rules in the nation regarding when judges are disqualified from hearing cases involving campaign contributors. A court rule adopted in 2011 states that no case shall be assigned by court administrators to a judge when the lawyers or any of the participants involved donated $2,500 or more in the preceding two years.
In California, according to a 2010 law, judges must disclose contributions from parties and attorneys in cases before them. Judges who received a contribution of more than $1,500 from a party or attorney for an election within the last six years or for an upcoming election are disqualified from participating in the case. The noncontributing party may waive disqualification.
A 2006 law in Washington state applied the same contribution limits to supreme court and court of appeals candidates as for statewide candidates for other offices, and it set the same limits for superior court candidates as exist for state legislative candidates, the National Institute on Money in State Politics reports: “Contributions to appellate court candidates are capped at $1,600 per donor for the primary and $1,600 for the general election, and contributions to trial court candidates are capped at $800 per election. Prior to this legislation, there were no limits on contributions to judicial candidates, except during the three-week period before the general election.”
As Chaimov notes, Oregon does not impose any limits on fundraising amounts for political campaigns, including judicial ones. An individual or corporation could contribute a billion dollars without restraint, he says. “Assuming that happened, should you have to have the judge disqualify himself if someone gave them X amount of dollars for their campaign?”
“I think it’s the case that if I had been offered a huge pot of money from a sole contributor, that I would not have accepted it, just because it would seem unseemly,” says Sercombe.
Linder and Gillette say they never looked at lists of who gave what to them, even though they are not forbidden from doing so, nor from thanking those who contributed.
“Can a judge remain absolutely impartial if he knows a particular donor has given money to that candidate or the opponent?” asks Hinkle. “I don’t know if it is possible to be completely impartial.”
“We all expect judges to be accountable to the law rather than political supporters or special interests,” former U.S. Supreme Court Justice Sandra Day O’Connor has said. “But elected judges in many states are compelled to solicit money for their election campaigns, sometimes from lawyers and parties appearing before them. Whether or not these contributions actually tilt the scales of justice, three out of every four Americans believe that campaign contributions affect courtroom decisions.”
The American Bar Association’s Model Code states: “In order to guard against the possibility that conflicts of interest will arise, the candidate must instruct his or her campaign committees at the start of the campaign to solicit or accept only contributions that are reasonable and appropriate under the circumstances. Though not prohibited, campaign contributions of which a judge has knowledge, made by lawyers or others who appear before the judge, may, by virtue of their size or source, raise questions about a judge’s impartiality.”
“The only way to get around the dilemma we’re in” is to take the route O’Connor advocates, Hinkle says: abolishing judicial elections. But he says Oregon’s “populist streak” may run even deeper than other states’, as exhibited by its pioneering of the initiative and referendum. Changing to a system of selection other than electing judges would require a constitutional amendment, and Oregonians are not going to give up “their right to control public policy,” he says. “Any effort to restrict that would be doomed to failure.”
Still, Hinkle adds, “People of intelligence and goodwill can see the strong arguments on both side of the question.”
Judges and Endorsements
Oregon’s restrictions on judicial candidates extend beyond just matters involving money. Among other provisions, the code of conduct states that candidates must not act in a partisan manner and are forbidden from publicly endorsing or opposing a candidate for any public office, with the exception of those running for a judicial post.
“Our code is pretty liberal in terms of allowing judges to be active in the community,” says Rosenblum. “Judges are very involved in the community; we want them to be.” For instance, judges can speak at a charitable event or fundraiser as long as the event is “law-related,” she explains.
Rosenblum, who during her years as a judge served on the Judicial Conduct Committee of the Oregon Judicial Conference for two decades and chaired it for half that time, notes that Oregon’s rules of conduct diverge from ABA model rules in that “we allow judges to endorse in judicial races,” a provision she thinks is important. Even if judges are not listed as official endorsers of a judicial candidate, they can, do and should talk with others about whether the candidate would make a good judge. To be able to share their knowledge of that candidate’s ability to be “fair and impartial to everyone” is vital, because judges may be in a better position than most to assess whether a candidate is “capable of making that transition to judge,” she says. “It’s hard for the public to know who the candidates are. How do you get the word out? It’s a lot different from traditional politics.”
Clackamas County Circuit Court Judge Van Dyk would like that exception extended beyond just judges being able to endorse judicial candidates. For instance, if judges were allowed to advise the public about whether a candidate for district attorney is qualified, that “would be useful information to the public,” because “judges are the most informed citizens in the body politic of who is well-suited for this influential, powerful position,” he says. A D.A. is “hugely important in our society, and judges have among the best perceptions available” of an individual’s qualifications for that post, “but that kind of speech is proscribed by the code of conduct.”
Former Justice Gillette says he understands Van Dyk’s point, because judges see lawyers who appear before them in court, which gives them more knowledge than most about a D.A. candidate’s suitability. On the other hand, Gillette asks, would it be appropriate for a judge to endorse a lawyer who in the future may appear before that judge? “It starts to look bad” if such exceptions were made to the code governing endorsements, he contends.
Chaimov would prefer that judges standing for election be able to speak more freely about themselves and their viewpoints. “Judges limit themselves to [talking about] who they are and what they’ve done, and they don’t discuss policy or legal philosophy or positions on issues,” he says. “It would be better for voters if they know more about the judge, such as whether they are an originalist or evolving.” If the way we select judges is by election, “I would like to see more substance in the conversation than just a résumé.”
ABOUT THE AUTHOR
Cliff Collins is a Portland-area freelance writer and frequent contributor to the Bulletin. Reach him at email@example.com.
© 2015Cliff Collins