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Susan M. Holden - Press

Pitfalls of Publicly Funding Judicial Campaigns

December 2005 - Bench & Bar of Minnesota - by Susan M. Holden

In August 2005, the 8th Circuit’s opinion in RPM v. White1 (“White II”) changed the landscape of judicial elections in Minnesota. That case, together with the earlier decision by the U.S. Supreme Court,2 (“White I”) declared unconstitutional most of the restrictions that previously applied to judicial campaigns. Minnesota’s Judicial Conduct Code, Canon 5, was found to be an unconstitutional infringement of candidates’ 1st Amendment rights to free speech. As a result, candidates for election as judges are now free to announce their views on issues that may come before them in court. They are free to affiliate with political parties and attend political gatherings where they may seek endorsements and directly solicit campaign contributions.

Many are concerned about the future of judicial elections in Minnesota and whether this marks the beginning of a decline in the independence of our judiciary, a decline in the impartiality of judges, and politicization of the bench. The MSBA is one organization among many groups that are analyzing the issues raised by White II and the options available to us in response.

Some suggest public financing of judicial campaigns is the remedy for this post-White environment. However, we should proceed slowly and with great caution in introducing this “remedy” for judicial elections in Minnesota.

Public financing methods generally provide campaign financing as long as the candidate agrees to certain spending and/or contribution limitations for their campaign. But to be constitutional, the public funding systems must be voluntary. A candidate cannot be required to participate and is not bound by the spending limits if they do not. In addition, public funding schemes regulate spending of candidates but do not limit the expenditures of political parties or other private interest groups. Thus, public financing does not cap spending nor guarantee a level playing field in judicial elections and is not a solution to issue-oriented campaigns.

Five years ago the ABA formed a commission to consider this topic in response to concerns expressed across the country about the escalating cost of judicial campaigns. The commission, following two years of study, unanimously recommended that states who elect judges should adopt some form of public financing for judicial campaigns. The House of Delegates adopted this as the policy of the ABA in February 2002. One month later, the parties argued White I before the U.S. Supreme Court. Since then, White I and II have changed the rules of judicial campaigns.

What is now the focus of serious concern about judicial elections is the highly financed, issue-oriented or partisan campaign. Independent advocacy groups, political parties, and other special interests have by their expenditures contributed to the steady escalation of sums spent in judicial elections. As the 2004 elections demonstrated, “A perfect storm of hardball TV ads, millions in campaign contributions and bare-knuckled special interest politics is descending on a growing number of Supreme Court campaigns.”3

There has never been public funding of judicial campaigns in Minnesota and, given the pitfalls of such a system, one wonders whether we should even consider it. The key benefit of publicly funding judicial campaigns is that judges would be elected without having to solicit funds from anyone that may subsequently appear before them in court. In theory that eliminates the concern that judges would be beholden to their campaign contributors. But the constitutional requirement that participation in public funding mechanisms be voluntary makes this benefit illusory. Candidates facing an opponent who does not agree to the spending limits will necessarily be drawn into an “arms race” of fundraising activity that carries all of the risks posed by soliciting funds from those who may later appear before the judge.

Other states have tried public funding mechanisms for judicial races with limited discernable success. Wisconsin and North Carolina are the only two states that presently provide direct cash payments to candidates in some judicial races.4 There are lessons to be learned from their efforts: Taxpayers will not fully fund judicial campaigns voluntarily. If spending limits are low, candidates have less incentive to participate. If candidates must raise money in order to qualify for public funds, the promise of reducing the threats to judicial independence cannot be fully realized. Nothing in public funding systems negates the threat to judicial independence posed by large expenditures by private interest groups whose spending is not limited. Currently pending litigation challenging the constitutionality of what was touted as the national model for campaign financing will further inform us about the limits of publicly funding judicial elections.5

There is no easy answer to the question of what we can do to preserve the independence and impartiality of the judiciary while we continue electing our state’s judges. Although well-intentioned, the concept of publicly funding judicial campaigns needs considerably more study and analysis. That process is underway within the MSBA’s Judicial Elections Committee. The MSBA will not be advocating in favor of public financing until that analysis is completed.

Notes

1. Republican Party of Minnesota, et al. v. White, No. 99-4021, ___ F.3d. ___ (8th Cir. 08/02/05).

2. Republican Party of Minnesota, et al. v. White, 536 U.S. 765 (2002).

3. The New Politics of Judicial Elections 2004. Washington: Justice at Stake Campaign. page vi.

4. McLeod, Aman. “If At First You Don’t Succeed: A Critical Evaluation of Judicial Selection Reform Efforts, 107 W. Va. L. Rev. 499, 516 (Winter 2005).

5. Jackson et al. v. Leake et al., Civ.No. 1:05CV00691 (M.D.N.C., 09/07/05).