Journal Article

A Tale of Two Restrictions

Taylor, Travis N

2022

Overview

When we consider the importance of an independent judiciary, questions of impropriety are even more salient and the stakes are even higher.1 The issue is especially pressing when considering recent research that demonstrates an increase in independent expenditures in judicial races in the wake of the Supreme Court's ruling in Citizens United.2 Even if a judge were - in her own mind - completely impartial, \"proof of actual bias\"3 is not the standard for recusal; even the \"serious risk of actual bias - based on objective and reasonable perceptions\" is enough to require recusal.4 Consider the following: an open seat on a state supreme court, and a litigant who knows a case involving a large financial penalty levied against his business is headed to that very court. To combat the potential for corruption arising from contributions made to judicial candidates (the majority of which come from attorneys14), the American Bar Association's (ABA) Model Code of Judicial Ethics contains a canon providing that, \"A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary. Table 1 shows that some, but clearly not all, states have promulgated restrictions on the ability of judicial candidates to personally solicit contributions for their campaigns.18 Earlier research by political scientist C. Scott Peters shows that the CJE Direct Solicitation Rule is significantly related to competitiveness in judicial elections.19 Peters shows that in states where the Direct Solicitation Rule is in place, incumbent judges are advantaged in re-election contests over challengers. [...]the rule appears to be creating barriers to entry for candidates, but the question remains whether or not the rule impacts the amount of money donors contribute to state judicial candidates. Candidates themselves raise money in larger sums than a proxy is able to raise.21 In other words, candidates are likely to garner contributions more often and in greater amounts when they themselves are involved in the fundraising efforts, as compared to when a proxy fundraises on a candidate's behalf. Because candidates are more successful in these ways, and because some states prohibit judicial candidates from directly soliciting funds, it stands to reason that the presence of the direct solicitation canon would reduce the dollar amount a donor contributes to a judicial campaign.

• Publisher: Duke Law Center for Judicial Studies
• Subject: Campaign contributions / Fund raising / Judicial elections / Judicial ethics / Political finance