Judicial Campaign Speech Restrictions: Some Litigation Nuts and Bolts
Weber, Walter M., Albany Law Review
Litigators confronting a new area of law must come quickly up to speed on the pertinent substantive and procedural issues. The purpose of this article is to give practitioners a jump-start in the context of constitutional challenges to restrictions on the speech of candidates for judicial office. For ease of reference, an appendix to this article lists, and very briefly summarizes, most, if not all, of the published decisions on the subject. (1)
I. CATEGORIES OF CAMPAIGN SPEECH LIMITATIONS
Restrictions on what a candidate for judicial office may or may not say vary from state to state. Nevertheless, the most frequently litigated restrictions tend to fall into several main categories.
A. "Announce" Clauses
An "announce" clause typically directs a candidate for judicial office not to "announce his views on disputed legal or political issues." (2) The Supreme Court has held the Minnesota version of this clause unconstitutional. (3)
B. "Commit" Clauses
A "commit" clause typically directs a candidate for judicial office not to "make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court." (4)
C. "Pledge or Promise" Clauses
A "pledge or promise" clause typically directs a candidate for judicial office not to "make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." (5)
D. "Misrepresent" Clauses
A "misrepresent" clause typically directs a candidate for judicial office not to "misrepresent his identity, qualifications, present position, or other fact." (6)
E. "Mislead" Clauses
Several states proscribe speech by judicial candidates that would be "misleading," though the scope and elements of this restriction vary. (7)
II. POSTURE OF CHALLENGES TO CAMPAIGN SPEECH LIMITATIONS
Constitutional challenges to state restrictions on the speech of candidates for judicial office arise in one of two postures: as affirmative challenges, (8) or as defenses to disciplinary proceedings. (9) An affirmative challenge would be brought by a candidate who fears speaking because of the potential of disciplinary consequences. (10) Such an affirmative challenge could be brought in either state or federal court. A candidate's defense to ongoing disciplinary proceedings, by contrast, would necessarily take place in the state forum (either an administrative agency or a court) assigned the responsibility to hear such proceedings.
As noted below, the posture of the challenge can affect what strategic options are available to the challenger--the candidate--and to the defender--the state disciplinary authority. The challenger whose speech may run afoul of state restrictions often has the capacity to select the posture and the forum (state or federal) by making a decision: either speak and await the initiation of disciplinary action, or refrain from speaking and instead bring an affirmative challenge. Of course, this choice may not be conscious. For example, if the initiation of disciplinary action was unforeseen, the candidate may be taken by surprise and forced into a defensive posture. Conversely, the disciplinary authority may decline to "take the bait" offered by a candidate who presses to or beyond the facial boundaries of a speech restriction, preferring instead to await a more egregious or strategically attractive incident.
III. TECHNICAL DEFENSES
In theory, the constitutionality of a restriction on speech is independent of the posture and forum of the challenge. Thus, for example, a limitation on campaign speech that is constitutionally overbroad is equally invalid whether the overbreadth objection is raised in a challenger's complaint or a challenger's answer.
Nevertheless, there are technical issues that may create obstacles to a court ever reaching the merits of a constitutional challenge. …