Judicial Ethics on the Campaign Trail
Posted by judicialethicsforum on Monday, June, 21, 2010
The Seventh Circuit weighed in last week on three common judicial ethics rules governing campaigns. Readers may recall that the Seventh Circuit is not shy about shaking things up in this area. [See Buckley v. Ill. Jud. Inquiry Bd., 997 F.2d 224, 230 (7th Cir. 1993) (striking down announce clause well before White came along).] To misappropriate Monroe Freedman’s famous term from another context, this new opinion is the latest in the growing “trilemma” of reconciling the First Amendment, Judicial Elections, and Impartiality (including its due process element). The rules at issue this time around had prohibited three campaign practices: (1) joining a party; (2) endorsing partisan candidates; and (3) directly soliciting campaign contributions. According to the court, this is how each rule fares, respectively: (1) unconstitutional; (2) constitutional; and (3) constitutional. The full opinion, with dissent, can be found here (Siefert v. Alexander). Readers may recall that the district court in early 2009 struck down all three prohibitions under First Amendment strict scrutiny analysis.
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Monroe Freedman said
Thank you for the credit, but, alas, I don’t deserve it. I thought at the time that I was the first to use the term, but then found that Justice Golberg had previously used it (“cruel trilemma”) in an opinion that I had to have read when it came out, because I had been on the brief in that case.
Ben Buchwalter said
I’m not an expert on the subject by any means, but I’ve always been fascinated by the political dynamics in judicial elections. I had not thought much about it until I spent a summer in Michigan a few years back. There was a campaign going on up there between a candidate who was very well funded and another who was not. I attended a debate between the two and was much more impressed by the woman who had not peppered the town with billboards and placards. Yet, the other candidate won, at least partially due to his large war chest.
I understand that money is a huge and unavoidable part of politics. But it seemed unfortunate for cash to have this same impact in a judicial election.