January 04, 2007

"First Amendment Limits on Regulating Judicial Campaigns"

SSRN has posted a draft of this chapter that I've written in a forthcoming NYU Press book, Running for Judge (Matthew Streb ed., forthcoming April 2007). Here is the abstract:

    In 2002, the United States Supreme Court held that a provision of Minnesota's rules regulating the conduct of judicial elections violated the free speech guarantees contained in the First Amendment to the United States Constitution. By a 5-4 vote, the Court in Republican Party of Minnesota v. White held that Minnesota could not prevent judicial candidates from "announcing" their views on disputed legal or political issues. White left open many questions, but some lower federal courts have relied upon it to strike down a host of other judicial campaign regulations, from those that prohibit judicial candidates from making campaign promises to those that bar such candidates from directly soliciting campaign contributions. State courts have read White more narrowly and upheld challenged judicial election rules, leading to a great deal of uncertainty over precisely which judicial campaign regulations pass constitutional muster. In addition, some state supreme courts, perhaps in anticipation of legislation, have changed the rules for conducting of judicial elections. The law is in a high state of uncertainty, which is likely to persist at least until the Supreme Court hears another case resolving these issues.

    White emerged at a time---perhaps not coincidentally--when judicial campaigns were becoming "nastier, noisier, and costlier," and White has the potential to inject judicial candidates more directly into the tumult of these newly-invigorated campaigns. This chapter, part of a forthcoming NYU Press book, Running for Judge (Matthew Streb. ed., forthcoming April 2007) considers the legal question whether, in light of White, the most important judicial campaign regulations can survive First Amendment challenge. The question is important and urgent in the thirty-nine states that select or retain at least some of their judges through elections.

    This chapter first lays out the major regulations of judicial conduct in various states. It then summarizes White's holding and reasoning. The remainder of the chapter considers arguments that have been advanced since White for and against the constitutionality of the major judicial campaign regulations. The analysis concludes that most of the major regulations are of uncertain constitutionality under White. This constitutional analysis must be considered with caution, however. Two of the five Justices in the White majority (Chief Justice Rehnquist and Justice O'Connor) have left the Supreme Court, and it is unclear whether the new Roberts Court will follow White faithfully or go forward in a moderately or radically different direction. Only time will tell if remaining longstanding special regulations for judicial elections will survive legal challenge.

Posted by Rick Hasen at January 4, 2007 04:29 AM