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Should Judges Be Allowed to Court Campaign Donors?

That’s what the U.S. Supreme Court will decide in a case that could make judicial elections even more like other political races.

Judicial elections over the past several years have been growing increasingly politicized, as candidates have begun campaigning more vigorously and publicly pledging positions on various controversial issues that could come before them on the bench. But a case before the U.S. Supreme Court could push that further, making judicial races even more like contests for other elected offices.

MORE: Read the rest of the December issue.

At issue is whether judicial candidates should be allowed to directly ask for campaign contributions. That’s prohibited by ethics rules in 30 of the 39 states that elect judges. Instead, judicial candidates in those states must leave the task of asking for money to supporters and friends. The idea is to prevent lawyers or potential litigants from currying favor with judges who may handle their cases. Putting distance between judges and donors, the thinking goes, makes the connection less personal. 

But federal appeals courts in four states -- Arizona, Georgia, Kentucky and Minnesota -- have said such restrictions violate candidates’ First Amendment free speech rights, because asking for financial support in an election is a key component of free speech. Meanwhile, other federal courts have upheld solicitation bans for judicial candidates in Indiana, Pennsylvania and Wisconsin. State supreme courts in Arkansas, Florida and Oregon also agreed with the rules.

The case before the Supreme Court comes from Florida, where in 2009 a county judicial candidate named Lanell Williams-Yulee was fined nearly $1,900 for signing her name to a fundraising letter. The solicitation ban, argues Williams-Yulee’s lead attorney Michael Kimberly, is an overly broad restriction of free speech. “What this comes down to is whether the rule, as it’s currently written, is as narrowly written as it can be written to achieve its stated end,” he says. “There’s really little question, in our view, that it isn’t.”

In most states that ban would-be judges from asking for campaign money, the candidates can still know the identity of their donors and even send thank-you notes. As such, solicitation bans do little to mitigate the appearance of impropriety, Kimberly says, but they do set “traps” for candidates like his client.

But Bert Brandenburg, executive director of the judicial fairness group Justice at Stake, says prohibitions on judicial candidates asking for money are one of the last remaining protections on the integrity of these races. “Judicial elections are becoming a barn on fire. Since the year 2000, across the country state judicial elections have been overrun by big money and interest groups that want to buy judicial seats,” he says.

The Supreme Court in 2002 struck down rules that barred judicial candidates from weighing in on controversial issues, and it has opened the door to more money in elections in general.

Brandenburg says it’s important to treat judicial races differently from other electoral contests, because litigants are guaranteed a fair trial. “If money affects what a legislator or an executive does, that stinks,” he says. “If campaign money affects a decision in the courtroom, you’ve just violated the Constitution.”

Hans von Spakovsky, an elections expert with the conservative Heritage Foundation, disagrees. He points out that most states don’t require judges to recuse themselves in cases in which lawyers or litigants donated to their campaign. So the idea of banning direct solicitation “is kind of insulting to judges,” he says. “It’s saying they are unable to be impartial.”

Dan is Governing’s transportation and infrastructure reporter.
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