Keeping Mud off the Bench: The First Amendment and Regulation of Candidates' False or Misleading Statements in Judicial Elections

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INTRODUCTION

In the last fifty years, perhaps no facet of American constitutional democracy has changed more than campaigns for judicial office. Judicial elections long stood in sharp contrast to elections for executive, legislative, or administrative office. In keeping with the judicial role of impartial adjudicator, judicial candidates historically avoided political controversy and campaigned on "polite promises of integrity." (1) During the late twentieth century, judicial elections were transformed from their more humble, less contentious beginnings into elections virtually indistinguishable, in both financial scope and campaign conduct, from other political campaigns.

Campaign donations and expenditures in judicial elections have risen at exponential rates across the country. In the Los Angeles area, campaign expenditures in the average superior court race increased twenty-two fold from 1976 to 1994. (2) In 1980, a campaign for an Ohio Supreme Court seat cost $100,000; (3) in 2000, a campaign for a seat on the same court cost an estimated $9 million. (4) In Michigan, the campaigns for three Supreme Court seats in the 2000 election cost at least $16 million each. (5)

These rising costs fuel concerns that campaign contributors are seeking the best justice that money can buy. One national publication has noted that "an influx of money from the tobacco industry, casinos, insurance companies, doctors and businesses" finances many judicial campaigns. (6) In her 2000 reelection bid, incumbent Justice Alice Robie Resnick of the Ohio Supreme Court received eighty-four percent of her total campaign contributions, totaling $329,175, from Ohio trial lawyers. (7) The other three candidates in the race for Resnick's Supreme Court seat received only $55,000 combined from Ohio trial lawyers. (8) In the late 1980s, Texaco representatives made campaign contributions of $72,700 to seven Texas Supreme Court justices while the appeal from the $11 billion Pennzoil lawsuit against Texaco was pending before the court. (9) Pennzoil's lawyers responded by contributing more than $315,000 to justices on that same court. (10) Most striking of all, a number of the justices who received campaign contributions from both Texaco and Pennzoil were not even facing reelection. (11)

Not only have recent years witnessed an explosion of campaign expenditures and vast individual donations by parties hoping to influence judicial decisionmaking, but also the conduct of judicial candidates and supporters during campaigns has changed since the days of "polite promises of integrity." The influx of money has fueled an increase in political attack advertisements, which utilize the skills of political consultants to craft slickly packaged, memorable images of both candidates and opponents. In a 1984 race for the Louisiana Supreme Court, Justice John Dixon's opponent ran the following newspaper advertisement, accompanied by a drawing of a large dagger:

   JOHN DIXON DOESN'T THINK 20 STAB WOUNDS ARE ENOUGH.... On appeal to the
   Louisiana Supreme Court, six Justices agreed with the death sentence. ONLY
   JOHN DIXON DIDN'T.... HE DIDN'T THINK MORE THAN 20 TIMES WAS ENOUGH TO
   JUSTIFY THE DEATH PENALTY. WHAT ABOUT YOU? THERE COMES A TIME TO DRAW THE
   LINE. THE TIME IS NOW. (12)

During the 2000 campaign, Citizens for a Strong Ohio, a pro-business organization, accused Justice Alice Robie Resnick of the Ohio Supreme Court "of having an anti-business bias, encouraged by the donations of trial lawyers." (13) In one television advertisement that Citizens for a Strong Ohio sponsored, Justice Resnick was depicted "in black robes switching a vote after someone dumped bags of money on her desk. Another show[ed] a blindfolded lady justice peeking at a pile of money on her scales, before she and the scales fall over and break." (14) Justice Resnick was not defenseless in her reelection campaign, however; Ohio unions, trial lawyers, and teachers' organizations each ran advertisements attacking her opponent, Judge Terrance O'Donnell. …