Canons, Cost, and Competition in STATE SUPREME COURT ELECTIONS

Article excerpt

IN early every state that !elects its judges subjects its judicial candidates to restrictions on what they can say or do during campaigns in an effort to protect the integrity and impartiality of the judiciary from the clamor of electoral politics. In Republican Party of Minnesota v. White,1 the U.S. Supreme Court struck down one such restriction, prompting much concern and speculation about the future of judicial elections. As judicial campaigns become more competitive and more expensive, many fear that the Supreme Court's decision limiting states' abilities to regulate candidate speech during judicial elections will result in louder, nastier, more expensive elections that may threaten the integrity and independence of the judiciary.

The watchdog organization Justice at Stake provides some anecdotal evidence to support this contention. For example, in 2003 Judge Max Baer openly campaigned as a pro-choice Democrat and won a seat on the Pennsylvania Supreme Court.2 In the 2004 election, a candidate in Ohio stated his positions on issues that were actively before the court for which he was campaigning, while a candidate for the Montana Supreme Court declared her positions on a variety of issues and attacked her opponents who refused to do so as cowards.3

Goldberg et al. further note that interest groups have taken to distributing questionnaires to judicial candidates; in Georgia, the Christian Coalition distributed a flyer based on results of such a questionnaire and indicated "no response" for incumbent Justice Leah Sparks, who refused to participate, and "attacked her for concurring in a decision striking down Georgia's sodomy law."4

Such issue-specific campaigning, once unusual in judicial elections, is, according to most observers, on the upswing. Still, any conclusions about White's real effect are necessarily tentative; there have been only three full election cycles since the decision. While we can describe how lower courts have responded to the decision, its proximity makes it difficult to reach any definitive conclusions about its impact.

States have subjected judicial candidates to the constraints of canons of ethics for a long time, however. Variation in ethics regulations across the states allows for comparison and analysis of dieir impact over time, beyond only the few election cycles since White. This article takes a step down that road by examining the effect of state canons of ethics on two important aspects of state supreme court elections: their cost and their competitiveness. It finds strong evidence that restrictions on candidates' partisan political activities contribute to lower-cost elections, and also finds some evidence of a similar effect for restrictions on candidates announcing their views or making pledges or promises about political and legal issues. On the other hand, it also finds that at least one ethical restriction is linked to higher spending. Similarly, it finds mixed evidence regarding the effects of the canons on levels of competitiveness.

The findings suggest that the canons vary in their effects on campaigns and that some are more effective than others in their ability to regulate campaign communications. They also indicate that extending the White decision to also forbid other restrictions on candidate speech is likely to have an effect on spending levels in judicial elections, though the effects could vary widely from jurisdiction to jurisdiction.

White and its aftermath

The first model code of judicial ediics was passed by die American Bar Association in 1924, in part in response to Judge Kennesaw Martin Landis's acceptance of a salary for acting as commissioner of baseball that was nearly six times as large as the salary he earned for being a federal judge.5 Led by Chief Justice William Howard Taft, who chaired the committee, the ABA constructed a code that included prohibitions on judicial candidates "announc[ing] in advance [their] conclusions of law on disputed issues of fact to secure class support. …