Amending Codes of Judicial Conduct to Impose Campaign Contribution and Expenditure Limits on Judicial Campaigns

36 Pages Posted: 3 Jan 2019

See all articles by Hugh D. Spitzer

Hugh D. Spitzer

University of Washington - School of Law

Philip Talmadge

Independent

Date Written: December 13, 2018

Abstract

Every judicial campaign year, millions of dollars pour into individual court races around the country. The bulk of that money is donated by lawyers, businesses, and others with financial interests in how judges, especially appellate judges, decide cases. United States Supreme Court rulings on political contributions and spending have hamstrung the ability of states to control large scale expenditures in judicial races.

This essay reviews empirical research by political scientists who have documented the effect of large campaign donations on how judges decide cases and on the public’s perception of court impartiality. It describes how legislatures and courts have addressed (or failed to address) the flood of money into judicial races.

The essay then proposes a number of actions that state courts and legislatures could take to control judicial campaign spending. First, we recommend that in jurisdictions with inadequate statutory judicial campaign controls, state supreme courts should act forcefully to impose strict caps on both direct and coordinated contributions to judicial campaigns, using the American Bar Association’s Model Code of Judicial Conduct, Rule 4.4(B)(1). Second, we suggest that state codes of judicial conduct should integrate the parallel mandatory disqualification mechanism in the ABA’s Model Code of Judicial Conduct, Rule 2.11(A). Next, we contend that legislatures have sufficient cause under a strict scrutiny test to protect judicial impartiality and the appearance of impartiality by limiting total judicial campaign committee expenditures and controlling independent expenditures by outside groups. Further, we assert that if legislatures fail to act, the courts themselves have sufficient inherent authority to impose those expenditure limits. Finally, we urge states to adopt public funding systems for judicial campaigns, and we argue that the need for judicial impartiality should provide legislatures with sufficient cause to adopt restrictions that would not be constitutionally acceptable in non-judicial campaigns.

Keywords: constitutional law, separation of powers, court rulemaking, court rules, campaign finance, judicial elections, judges, state government, judicial ethics, judicial administration

Suggested Citation

Spitzer, Hugh D. and Talmadge, Philip, Amending Codes of Judicial Conduct to Impose Campaign Contribution and Expenditure Limits on Judicial Campaigns (December 13, 2018). Virginia Journal of Social Policy and the Law, Vol. 25, No. 2, Pp. 87-121, 2018, Available at SSRN: https://ssrn.com/abstract=3300772

Hugh D. Spitzer (Contact Author)

University of Washington - School of Law ( email )

Box 353020
Seattle, WA 98195-3020
United States
206-685-1635 (Phone)

HOME PAGE: https://www.law.washington.edu/directory/profile.aspx?ID=470

Philip Talmadge

Independent

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