First Amendment Limits on the Regulation of Judicial Campaign Speech: Defining the Government’s Interest
In First Amendment Limits on the Regulation of Judicial Campaign Speech: Defining the Government’s Interest, Professors Paul E. McGreal and James J. Alfini explore the permissible limits on judicial campaign speech in light of the Supreme Court’s First Amendment Campaign Speech precedent. Professor McGreal argues that, as long as a judge’s campaign speech expresses an accepted form of legal analysis, that speech may not be regulated without violating the judicial candidate’s First Amendment rights. Dean Alfini, on the other hand, would require a more stringent regulation of campaign speech and would base such restrictions on the ABA’s formulation that judges may not “make pledges, promises, or commitments” in their campaign that would compromise their impartiality.
Defining Judicial Impartiality: The Problem of Campaign Promises
What does it mean for a judge to be “impartial”? The United States Supreme Court faced this seemingly simple question in Republican Party of Minnesota v. White, 536 U.S. 765 (2002). White involved the “announce clause” of the Minnesota Code of Judicial Conduct, which prohibited judicial candidates from announcing their views on issues likely to come before the court for which they were a candidate. The Minnesota announce clause was a fairly typical provision, with thirteen states then having similar prohibitions. Minnesota defended the announce clause as necessary to preserve the impartiality of its judges. The problem, as the Court learned, is that Minnesota—like other states with similar provisions—did not specify what “impartiality” meant. Instead, Minnesota simply identified campaign behavior that it did not like—such as announcements of legal views—and then asserted by ipse dixit that such conduct compromised impartiality.
The Court held that the announce clause violated the First Amendment’s free speech guarantee. While White's holding is limited to the announce clause, the case spurred many states to re-examine how they regulate judicial campaign speech more generally. Not surprisingly, most states revised or repealed their version of the announce clause. Some states, however, chose to retain a more common campaign regulation that was not at issue in White: a general prohibition of campaign promises. These states seem confident that such promises compromise judicial impartiality.
This Opening Statement makes two related points. First, for purposes of First Amendment analysis, judicial impartiality should mean simply that a judge will make decisions using the accepted methods of legal analysis. Part II develops this point. Second, candidate promises of performance in office do not necessarily compromise judicial impartiality. Consequently, state rules that ban such promises, like their cousin the announce clause, violate the First Amendment. Part III develops this second point. But first, Part I briefly describes the Court’s decision in White.
I. WHITE AND THE FIRST AMENDMENT FRAMEWORK
Under the First Amendment, the announce clause received strict scrutiny—the most stringent test in constitutional law—because it was a con-tent-based restriction of political speech. Strict scrutiny required Minnesota, first, to identify a compelling interest for banning the announcement of a candidate’s views, and, second, to show that the announce clause was narrowly tailored to that interest. Minnesota argued that the announce clause served a compelling interest in preserving judicial impartiality. The problem with this argument was that the meaning of impartiality is not self evident, and Minnesota had not offered a definition. This omission led the Court to hypothesize three possible meanings: party neutrality, issue impartiality, and open-mindedness.
The White Court easily dismissed the first two versions of impartiality. First, the Court rejected party impartiality, which means that judges shall not indulge “bias against [a] party, or favoritism toward the other party,” because the announce clause was not narrowly tailored to this interest: the clause proscribed “speech for or against particular issues,” not “speech for or against particular parties.” White, 536 U.S. at 776. Second, the Court rejected issue impartiality, which it took to mean “lack of preconception in favor of or against a particular legal view,” as “neither possible nor desirable.” Id. at 777-78. It is impossible to find lawyers with no views on the law, and even if we could, we would not want these lawyers as judges.
The third version of impartiality—open-mindedness—means that “a judge [must] be willing to consider views that oppose his preconceptions, and remain open to persuasion, when the issues arise in a pending case.” Id. at 778. The Court also described open-mindedness as requiring that a judge be free “from pressure to rule a certain way.” Id. The White Court concluded that Minnesota’s announce clause was not intended to promote open-mindedness, and so it never explained what this version of impartiality entails. Part II uses open-mindedness as a springboard for developing a new definition of impartiality.
II. IMPARTIALITY AND THE JUDICIAL ROLE
The first question is whether impartiality requires a judge to be equally open to all legal arguments. The answer must be “no,” as many legal doctrines and practices require a judge to close her mind, in whole or in part, to certain legal arguments. For example, the doctrine of stare decisis requires a lower-court judge to reject arguments to overrule, modify, or ignore existing precedent of a higher court. Similarly, procedure and ethics rules bar lawyers from making—and judges from crediting—frivolous legal arguments. Because judges may properly close their minds to some legal arguments, “open-mindedness” does not helpfully describe what we expect of judges.
A workable definition of impartiality, then, must distinguish between proper and improper influences on judicial decision making. To do so, we must have a conception of how judges ought to behave, including the matters, sources, and arguments that may properly influence a judge’s decision. A judge who stays within this role will be impartial, while a judge who acts outside this role will not.
In defining the judicial role, we must keep in mind the reason for doing so. Recall that our task is to define the state’s compelling interest in judicial impartiality, which will be used in First Amendment free-speech analysis. Because impartiality is rooted in due process, states asserting that interest are invoking a concept of constitutional meaning and origin. For this reason, our analysis should look to the Constitution’s conception of the judicial role.
As I have argued elsewhere, the Constitution assumes that judges should act like lawyers in performing their jobs. See Paul E. McGreal, Ambition’s Playground, 68 FORDHAM L. REV. 1107, 1143-85 (2000); Paul E. McGreal, Impeachment as a Remedy for Ethical Violations, 41 S. TEX. L. REV. 1369 (2000). As a professional community, lawyers recognize certain methods of reasoning and thinking as permissible. As judges are expected to come from the legal community, the profession’s norms and practices would limit and control judges’ decision making. To take an extreme example, a judge who decides cases by flipping a coin, or based on litigants’ hair colors, would surely, and rightly, be criticized.
The next question is whether it matters that a judge’s legal analysis is influenced by the pressure of political accountability. For example, suppose that an appellate judge believes there are nonfrivolous legal grounds to rule for either party to an appeal, but that she also believes ruling for the peti-tioner would be unpopular with the electorate. Assume that the electorate’s opinion influences either the judge’s decision or how the judge writes her opinion. Is such political pressure an improper influence on a judge’s decision making?
The answer must be “no” if we are to retain judicial elections. Indeed, a contrary answer ignores the elephant in the room: public accountability certainly influences the behavior of judges who must stand for reelection. The admitted reason for having incumbent judges stand for reelection is to allow voters to turn unsatisfactory judges out of office, with incumbent judges evaluated based on their performance in office. Nothing in law, logic, or experience prevents voters from evaluating a judge’s substantive rulings or legal views. Realizing that voters will do so, a judge will at least consider that fact in making judicial rulings. As Justice O’Connor noted in her concurring opinion in White, “[e]lected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects.” White, 536 U.S. at 789 (O’Connor, J., concurring). In short, if impartiality asks us to bar any political influence on judicial decision making, we crossed that Rubicon with the adoption of judicial elections.
III. CAMPAIGN PROMISES DO NOT VIOLATE IMPARTIALITY
The preceding discussion has defined a version of impartiality that can serve as a compelling state interest for regulating judicial campaign speech: judges must decide cases through the legally prescribed processes, using the accepted sources and methods of legal analysis. Further, political accountability may permissibly influence the judge’s selection or discussion of legal analysis. The last question is whether a campaign promise would violate this understanding of impartiality.
To see how my version of impartiality would apply to campaign promises, consider the hypothetical case of State v. Smith. Smith was convicted of child molestation, and his conviction was upheld on direct appeal. While Smith is now within six months of completing his sentence, the state has recently enacted a violent sexual predator law that allows continued civil detention of child molesters who are found beyond a reasonable doubt to constitute a continuing threat to society. The United States Supreme Court has held that such civil detention statutes do not violate the United States Constitution. See Kansas v. Hendricks, 521 U.S. 346, 369 (1997). Smith has brought suit in state court arguing that the statute violates the due process provision of the state constitution. Both the state trial court and court of appeals agreed, striking down the civil detention law. The state has appealed to the state supreme court where the case is now pending.
Assume that a candidate for the state supreme court is asked about the pending appeal in State v. Smith, and the candidate says, “I have studied the text, history, and purposes of the state constitution, and if elected, I promise to decide the case against Smith.” This statement, though barred by most state prohibitions of campaign promises, would not violate my version of impartiality. The candidate has promised to make her decision based on accepted legal sources—the State Constitution’s text, structure, and history. The fact that the pressure of political accountability may affect her willingness to depart from that legal analysis does not affect the candidate’s impartiality. Thus, banning such a promise would violate the First Amendment because doing so would not serve the state’s interest in preserving judicial impartiality.
A more difficult question arises if the candidate simply says, “I promise to rule against Smith.” Because this statement does not explain the basis for the judge’s prospective decision, the statement alone does not indicate whether the candidate’s promise is based on extra legal grounds. Does the First Amendment protect such a naked promise?
The Supreme Court’s decision Buckley v. Valeo, 424 U.S. 1 (1975), suggests that the candidate would be protected. There, the Court addressed a federal campaign-finance law that limited a person’s independent campaign expenditures in support of a candidate (i.e., expenditures that support, but are not coordinated with, a candidate). Congress had argued that the limit was needed to prevent bribery, as a person might make independent expenditures in exchange for a candidate’s express or implied promise of action in office. The Court held that a limit on independent expenditures was not narrowly tailored to the prevention of bribery. Because independent expenditures did not raise an unavoidable inference of bribery, existing bribery laws could adequately guard against corruption. A prophylactic measure was only appropriate when the challenged conduct was likely to threaten the government’s interest.
So, does a naked judicial campaign promise raise an unavoidable inference that the candidate will make decisions on extra legal grounds? My tentative answer is “no.” The public knows that the ordinary work of judges includes applying the law, and they likely view judicial campaign promises in that context. Further, under Buckley and White, the state bears the burden of proving that the electorate would necessarily draw the forbidden inference. My suspicion is that states possess no relevant evidence at this point, given that most states merely adopted a version of the American Bar Association’s Model Judicial Code with little (if any) empirical study.
State regulations of judicial campaign speech rest on an unexamined premise: political influence impermissibly interferes with judicial impartiality. Perhaps because this premise fatally undermines the entire enterprise of judicial elections, states have not developed a fully formed definition of impartiality. This Opening Statement attempts to do so and explains how this definition undercuts the constitutionality of a mainstay of current judicial campaign regulations—the prohibition on campaign promises. As long as a candidate’s promise of performance in office is based on an express or implied legal analysis, the First Amendment bars states from punishing the candidate’s speech.
Judicial Impartiality as a Compelling State Interest: A Defense of Current Restrictions on Judicial Campaign Speech
This Rebuttal argues that the basic restriction on judicial campaign speech as enunciated in the current American Bar Association (ABA) Model Code of Judicial Conduct is appropriate on both philosophical and constitutional grounds, particularly in its reliance on the protection of judicial impartiality. The ABA Model Code restriction reads, in pertinent part: “a judicial candidate shall not . . . in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the ad-judicative duties of judicial office.” MODEL CODE OF JUD. CONDUCT R. 4.1 (2007). The 2007 ABA Model Code defines impartial as the “absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.” MODEL CODE OF JUD. CONDUCT Terminology (2007). In his Opening Statement, Professor McGreal disagrees with this formulation, arguing for a much more limited definition of judicial impartiality that would preclude most, if not all, restrictions on judicial campaign speech.
The concept of judicial impartiality is at the center of this Debate, as Professor McGreal makes clear in his Opening Statement. He accurately notes that too little attention has been paid to defining judicial impartiality but mistakenly takes a minimalist approach to correcting this problem. Unlike Professor McGreal, I believe that judicial candidates who “make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office” threaten the due process rights of parties who may come before them and compromise their duty and ability to uphold the rule of law in our democratic society. For the sake of consistency, this Rebuttal to Professor McGreal’s analysis will adopt the structure used in his Opening Statement by addressing the First Amendment framework first, followed by issues relating to the judicial role.
I. WHITE AND THE FIRST AMENDMENT FRAMEWORK
At the outset, it should be noted that I agree with the outcome in Republican Party of Minnesota v. White that the “announce clause,” a provision in the 1972 version of the ABA Model Code of Judicial Conduct, is unconstitutional on First Amendment grounds. Because of concerns over the constitutionality of the “announce clause,” the ABA had removed the “announce clause” from its Model Code of Judicial Conduct in 1990. Only nine states, including Minnesota, still had the announce clause in their judicial ethics canons at the time of the decision in White in 2002. See Cynthia Gray, The Good News in Republican Party of Minnesota v. White, 87 JUDICATURE 271, 271 (2004). In prohibiting announcing one’s views on all “disputed legal and political issues,” White, 536 U.S. at 768, the code restriction sweeps too broadly, prohibiting both protected and unprotected speech, and is thus not narrowly tailored to serve the compelling state interest in an impartial judiciary.
Where Professor McGreal’s constitutional analysis goes wrong is in his insistence in lumping the announce clause with the clauses prohibiting “pledges,” “promises,” and “commitments” in the 1990 and 2007 versions of the ABA Model Code. A careful reading of the White decision would lead one to conclude that these campaign speech provisions are still viable. At the time of the White decision, the 1990 version of the ABA Model Code of Judicial Conduct had a clause prohibiting “pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office” and another clause prohibiting “statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court.” MODEL CODE OF JUD. CONDUCT Canon 5(A)(3)(d) (1990). With regard to the “pledges or promises” clause, Justice Scalia, the author of the five-person majority opinion in White, ducked the issue by stating the clause is “a prohibition that is not challenged here and on which we express no view.” White, 536 U.S. at 770. As to the “commit clause,” the Court again avoids the issue by stating, “We do not know whether the announce clause (as interpreted by state authorities) and the 1990 ABA Canon [the commit clause] are one in the same. No aspect of our constitutional analysis turns on this question.” Id. at 774 n.5.
Professor McGreal would be quick to point out, however, that attempts to conclude that the White decision leaves the current Code restrictions intact fails to reckon with certain aspects of the Court’s analysis. Although the Court explicitly declined to rule on the constitutionality of the pledges-or-promises and commit clauses, both of these provisions are, like the “announce clause,” content-based restrictions on a candidate’s speech and would therefore be subject to strict scrutiny if challenged in subsequent cases. That is, defenders of these provisions would have the burden of showing that they are narrowly tailored to serve a compelling state interest. Although the White decision rests on the Court’s unremarkable conclusion that the “announce clause” is overbroad, Professor McGreal would argue that Justice Scalia’s majority opinion brings into question the state’s argument that the “announce clause” restriction, or presumably any other content-based speech restriction, is justified because of the state’s compelling interest in preserving judicial impartiality and the appearance of impartiality, particularly if one accepts his limited definition of impartiality.
Again, however, Professor McGreal’s analysis fails to distinguish between the “announce clause” on the one hand and the pledges, promises, and commitments clauses on the other hand. The distinguishing characteristic is prejudgment. A candidate for judicial office does not prejudge a case when he or she announces his or her views on a disputed legal or political issue. The candidate does prejudge a case when the candidate pledges, promises, or commits to decide a case or class of cases in a particular way. Prejudgment compromises the judge’s ability to be impartial, a compelling governmental interest in a representative democracy.
Indeed, Justice Scalia has demonstrated a personal concern over the appearance of prejudgment by recusing himself in a post-White case in which his impartiality might reasonably have been questioned. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004). The case involved the constitutionality of the words “under God” in the Pledge of Allegiance. Prior to oral argument before the Supreme Court, Justice Scalia made a speech in which he appeared to criticize the lower-court opinion in the case. He subsequently removed himself from the case because of the appearance of prejudgment.
II. IMPARTIALITY AND THE JUDICIAL ROLE
Professor McGreal’s limited definition of impartiality is flawed because it adopts a minimalist conception of the judicial role that is not in keeping with the notion that the judge is the guardian of the rule of law in our society. Judicial impartiality requires much more of a judge than simply analyzing cases like a lawyer. It requires a commitment to guarantee the due process rights of litigants that come before the judge. Even if we were to adopt the McGreal (analyzing like a lawyer) conception of the judicial role, however, Professor McGreal conveniently forgets that lawyers are also the guardians of the rule of law in our society. Analyzing like a lawyer should also include thinking and acting in a way that advances the rule of law.
Prejudgment is inimical to the rule of law. Again, when a judge makes a pledge, promise, or commitment to rule in a certain way during the course of a judicial election campaign, the judge has effectively prejudged that case or class of cases, compromising his or her ability to be impartial. Proponents of campaign-speech restrictions argue that the need to maintain judicial impartiality is the main factor that distinguishes judicial election cam-paigns from those of other elected officials. Speaking through Justice Stevens, the four dissenting Justices in White added their voices to the impartiality chorus: “By obscuring the fundamental distinction between campaigns for the judiciary and the political branches . . . the Court defies any sensible notion of the judicial office and the importance of impartiality in that context.” White, 536 U.S. at 797 (Stevens, J., dissenting).
Although “judicial impartiality” is widely viewed as a core value in the American system of justice, this concept cannot be adequately understood or defined unless one considers the related concepts of “judicial independence” and the “rule of law.” The notion that we are committed to the rule of law is an essential norm in our representative democracy. Judicial independence and judicial impartiality are instrumental values that support and preserve the basic rule-of-law norm. And, indeed, the values of judicial independence and judicial impartiality are inextricably intertwined. Both play essential roles in judicial decision making in a democratic society. Judicial independence calls upon judges to be free of outside influences so that they may decide cases impartially.
In this postrealist era, it would be folly to argue that the values of judicial independence and judicial impartiality can be maintained in their absolute sense. Judges usually come to the bench after legal careers and public involvement that shape their views of the law. However, it is hard to believe that the vast majority of judges, elected or appointed, would abuse their independence or compromise their impartiality by regularly implementing personal or political agendas rather than adhering to the rule-of-law norm. Even though judges may have certain moral values and political views, these values are informed and tempered by a basic understanding and appreciation of the core democratic values of the rule of law and judicial independence and impartiality. They are keenly aware that bias, prejudice, and prejudgment are inimical to the administration of justice in a representative democracy.
In arguing for a narrow definition of judicial impartiality, Professor McGreal uses the example of a candidate who makes a pledge—explained or “naked”—to rule in a certain way in a case that is pending before the court to which the judge is seeking to be elected. He asks us first to assume a candidate who says that she has studied the case and promises if elected to decide against the defendant. He states that such a promise would not violate his conception of impartiality, because the candidate has used accepted standards of legal analysis to prejudge the case. He then offers a second scenario where the candidate makes a “naked” promise to rule against the defendant. That is, the candidate does not indicate that she has analyzed the case and the promise may therefore have been made on “extra legal grounds.” Although Professor McGreal believes that this second scenario presents “a more difficult question,” he believes the candidate would be protected under Buckley v. Valeo. In Buckley, the Supreme Court ruled that a limitation on campaign expenditures was not narrowly tailored to accomplish the state’s interest in preventing bribery.
In both McGreal scenarios, the candidate has violated the due process rights of the defendant by prejudging the case. Due process requires that a defendant will have the right to have his or her case heard in an adversarial context by an impartial (open-minded) judge. In both scenarios, the judge has prematurely closed his or her mind and can thus no longer be considered to be impartial. That is, regardless of the arguments presented by the defendant’s lawyers in open court, the judge will rule against the defendant. Therefore, a prohibition against campaign promises would be narrowly tailored to accomplish the compelling state interest in an impartial judiciary. Unlike Buckley, where independent expenditures did not necessarily raise an inference of bribery, the inference of prejudgment and judicial partiality in McGreal’s scenarios is inescapable.
Moreover, the McGreal campaign scenarios are highly unlikely. It is unlikely that a case suitable for a campaign promise will conveniently be pending in the judge’s jurisdiction. More likely, is a scenario where a “law and order” candidate who, in his or her zeal to get a tough-on-crime message across, explicitly or implicitly promises to favor law enforcement agencies in deciding cases, thus prejudging cases brought by those agencies. Similarly, candidates courting sizable campaign contributions from big-business interests on the one hand or the plaintiffs’ bar on the other may make statements indicating that the candidates will favor those interests in cases that come before them if elected.
Restrictions on judicial campaign speech, anchored in a broad notion of judicial impartiality, are essential to preserve core values such as the rule of law in our representative democracy. Tests to determine the constitutional limits of judicial campaign-speech restrictions should focus on the due process rights of litigants that may come before the judge, not simply whether a judge has employed accepted standards of legal analysis.