Abstract

http://ssrn.com/abstract=954757
 
 

Citations (2)



 
 

Footnotes (61)



 


 



First Amendment Limits on Regulating Judicial Campaigns


Richard L. Hasen


University of California, Irvine School of Law


RUNNING FOR JUDGE, Matthew Streb, ed., NYU Press, April 2007
Loyola-LA Legal Studies Paper No. 2007-5

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.

Number of Pages in PDF File: 26

Accepted Paper Series





Download This Paper

Date posted: January 3, 2007 ; Last revised: July 25, 2013

Suggested Citation

Hasen, Richard L., First Amendment Limits on Regulating Judicial Campaigns. RUNNING FOR JUDGE, Matthew Streb, ed., NYU Press, April 2007; Loyola-LA Legal Studies Paper No. 2007-5. Available at SSRN: http://ssrn.com/abstract=954757

Contact Information

Richard L. Hasen (Contact Author)
University of California, Irvine School of Law ( email )
401 E. Peltason Drive
Suite 1000
Irvine, CA 92697-1000
United States
949 824 3072 (Phone)
949 824 0895 (Fax)
HOME PAGE: http://law.uci.edu/faculty/page1_r_hasen.html
Feedback to SSRN


Paper statistics
Abstract Views: 4,409
Downloads: 154
Download Rank: 115,140
Citations:  2
Footnotes:  61

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo8 in 0.235 seconds