On Monday, the U.S. Supreme Court let stand two decisions upholding important rules that limit the influence of money and partisan politics on the courts. Pending before the Court were two cases from the Seventh Circuit Court of Appeals — Siefert v. Alexander and Bauer v. Shepard — which involved challenges to restrictions on judicial political activity and fundraising in Illinois and Wisconsin, respectively. The Court’s decision to leave the Seventh Circuit decisions alone underscores the fact that judges are different from other elected officials, and that because judicial elections are different from other elections, states have a strong interest in applying strict ethical rules.
The Siefert decision held that Wisconsin judicial candidates may not endorse partisan candidates for office or directly solicit campaign cash. Bauer involved similar rules, as well as some additional ones. In Bauer, the Seventh Circuit upheld provisions in Indiana’s code of judicial conduct that 1) forbid candidates from making commitments that are inconsistent with the impartial performance of the judicial office; 2) require recusal when a judges’ impartiality may reasonably be questioned; 3) limit political activities of Indiana judges; and 4) establish certain limits on fundraising and solicitation. As the Seventh Circuit recognized, limiting the risk that politics and campaign cash will influence judges is important, and these common-sense regulations further that interest.
Recent trends, including the increasing role that money and special interest pressures play in judicial elections, threaten public confidence in fair and impartial courts. In denying review of the Seventh Circuit cases, the Supreme Court left intact two strong opinions confirming that state judicial political activity bans are constitutional when drawn closely to the state’s interest in preserving impartiality and preventing corruption in the judiciary. As Chief Judge Frank Easterbrook wrote in Bauer, “Allowing judges to participate in politics would poison the reputation of the whole judiciary and seriously impair public confidence, without which the judiciary cannot function.” He added, “Preserving that confidence is a compelling interest.”
The Supreme Court has previously recognized, in Republican Party of Minnesota v. White, that there exists a “fundamental tension between the ideal character of the judicial office and the real world of electoral politics.” In grappling with this tension, the Court recognized in White that the First Amendment limits some restrictions on judicial candidates’ speech. On the other hand, the Court’s decision in Caperton v. Massey concluded that campaign activities can implicate serious due process concerns once a judicial candidate takes the bench as a judge. In Caperton, the Court found that large judicial campaign expenditures could create an unacceptable potential for bias — and require a judge’s disqualification.
Despite the seemingly different directions that White and Caperton point, both decisions recognize that judicial elections are not the same as other elections. Both cases implicate the state’s interest in regulating judicial campaign activity to isolate judicial candidates from the compromising elements of electoral campaigning — and to ensure public confidence in an impartial judiciary.
By leaving the Seventh Circuit’s decisions in Siefert and Bauer undisturbed, the Court allowed some ambiguity to persist with respect to what limits the constitution places on states’ attempts to regulate conduct on the judicial campaign trail. Lower courts are now split on the constitutionality of canons that prohibit judges and judicial candidates from directly soliciting campaign contributions. So, too, with respect to judges’ political activities: the Sixth and Eighth Circuits, for example, recently struck down Kentucky and Minnesota rules designed to keep politics out of the judiciary. These decisions contrast with the Seventh Circuit’s decision to uphold political activity canons designed to insulate sitting judges from politics unrelated to their own campaigns for re-election.
As state judicial elections continue to generate concerns about the increasing influence of politics and special interest money on the judiciary, it is crucial that states craft comprehensive rules to address the appearance of impropriety and associated declining public trust that will otherwise jeopardize the health of the judiciary. Judicial conduct rules like the ones in Wisconsin and Indiana are critical — but states with elected courts should also embrace recusal reform, disclosure, and public financing to protect judicial independence, recognizing that with independence comes a duty to promote both the appearance and the application of justice.