Campaign Oversight Committees and the Challenge of Perpetuating Ethical Judicial Elections

Article excerpt

This article considers the potential contribution that judicial campaign oversight committees can make to maintaining ethical conduct during judicial elections. There is renewed interest in oversight committees because most are voluntary in nature and, thus, unaffected by federal court decisions that greatly diminish what can be officially regulated through the canons. Oversight committees may also be a better counterweight to the out-of-state interest groups that increasingly intervene in judicial elections. The effectiveness of oversight committees is considered in the light of historical experience and specifically the role such committees played in the 2006 elections. Much remains to be learned about the impact of oversight committees, but already there are grounds for cautious optimism.

Judicial campaign oversight committees seek to ensure that judicial candidates campaign differently from those running for political office. Some committees enforce official ethical regulations on what candidates can do and say. Most rely largely or entirely on persuasion to influence candidate behavior. Sixteen statewide and about eighteen local campaign oversight committees were active as of mid-2007.

In Republican Party of Minnesota v. White (2002), the U.S. Supreme Court held that Minnesota's "announce clause" was an unconstitutional infringement of judicial candidates' First Amendment rights. Lower federal courts have expanded the scope of what can no longer be regulated to include provisions on "pledges and promises," nonpartisanship, and personal fund-raising (Caufield, 2007). Another defining feature of the post- White world is the involvement in judicial elections of political parties and special interests, entities not regulated by the canons before or after White. This resulted in massive spending on television attack advertisements and the distribution of candidate questionnaires designed to obtain information on how a candidate might rule in cases, controversies, or issues likely to come before the court.

This article explores the potential contribution that judicial campaign oversight and similar committees can make in the post-White world of judicial elections largely unregulated by the canons. Oversight committees are thought to have promise in this new world. Those committees, which have been said to have "encourage[d] and support[ed] appropriate conduct by candidates for judicial office," may, over the long run, "help create a culture and climate in which the expectations of all involved- candidates, political consultants, the bar, interest groups, the media, and the public-promote judicious campaigning" (National Ad Hoc Advisory Committee on Judicial Campaign Conduct, 2004:iii). Based on these and similar claims, various legal reform organizations, law professors, and political scientists pointto oversight committees as one way to promote traditional forms of judicial campaigning (as discussed at the 2000 National Summit on Improving Judicial Elections; see also Reed and Schotland, 2002; American Bar Association House of Delegates, 2002; Commission to Promote Public Confidence in Judicial Elections, 2004; Longan, 2005; Goldberg, 2007:89-90; Streb and Frederick, 2007:211-12).

There is much anecdotal but little empirical evidence that speaks to whether oversight committees can realistically be expected to meet these expectations. To advance what we know about the effectiveness of campaign oversight committees, we consider two types of sources. The first is a survey sent by the National Center for State Courts in January 2007 to all known judicial campaign conduct committees. Questions concerned how such a committee is organized and its activities during the 2006 elections. The second source is documentation provided by the various oversight committees themselves, supplemented through a review of newspaper articles and editorials referencing their work.

THE ORIGINS AND NATURE OF OVERSIGHT COMMITTEES

Statewide judicial campaign conduct committees emerged in the 1980s as mechanisms for enforcing and reinforcing official forms of regulation. …