Judicial elections are expensive in more ways than one.

There are lots of sources and stories about the escalation of dollars poured into, and spent in, judicial elections in various states.  Here’s an April 2016 article about Wisconsin; and here’s an October 2015 press release from a special-interest group made of folks including The Brennan Center.  But that isn’t the only thing that makes them expensive, state elections for judges also are expensive endeavors because they tend to breed litigation because of the regulatory structure that exists through state judicial ethics codes imposing restrictions on what judges and judicial candidates can and cannot say when running for office.  The stakes for all involved are high, not just because of the office sought but because judicial candidates who want to exercise First Amendment rights in campaigning also risk discipline against their law license for doing so given that most states, like Tennessee, have a rule like RPC 8.2(b) that makes lawyers who are campaigning for judicial office subject to discipline for violating applicable provisions of the state Code of Judicial Conduct.

The litigation being bred seems to be resulting in a slow, but steady, drip-drip-drip of rulings demonstrating that when a state makes the decision to allow their judges to stand for public election, there really is very, very little that can truly be regulated with respect to what they say in the furtherance of such campaigns.  The speech of candidates for office is core political speech and that means strict scrutiny is the standard that must be satisfied.  The U.S. Supreme Court decision in Williams-Yulee v. Florida Bar in 2015, upholding restrictions on personal solicitation of funds by judicial candidates, did offer some hope for existing state regulation on judicial campaign activity, as the majority opinion brushed away a number of concerns on the basis that what the First Amendment requires is that a restriction be “narrowly tailored” not “perfectly tailored,”  But the lasting legacy of Williams-Yulee is more likely to be found in the ramifications of these words:

In sum, we hold today what we assumed in White: A State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest.

It seems, with strict scrutiny as the standard, that beyond being able to prohibit promises or pledges about how a judge will rule as to a particular party or a particular lawsuit, the only other restriction on speech that will stand the test of time — because judges are recognized by the U.S. Supreme Court as being different than other politicians — is that judges can’t make false statements on the campaign trail.

The most recent expensive litigation decision over efforts to restrict the speech of judicial candidates comes from federal district court in Kentucky striking down several Kentucky restrictions as unconstitutional on various grounds under the First Amendment.  Several of the provisions struck down are ones that we also have in our Tennessee judicial ethics rules.

You can read the full 45-page opinion in  Winter v. Wolnitzek here, but I will give you what I hope you’ll find to be a pretty comprehensive summary in case you don’t want to add to your reading pile.

A little word about procedure and context, the case before the Kentucky federal court involved three judges/judicial candidates and involved, along the way, a certified question to the Kentucky Supreme Court.  In combination, the situations of the three judges teed up questions such as: (1) what did it mean to “campaign as a member of a political organization,” (2) what it took to be someone who acted “as a leader or officer in a political organization,” and (3) what constituted a “false statement.”  Those three questions were certified to the Kentucky Supreme Court for answers under state law.

Eventually, the Kentucky federal court issued this decision examining six canons of judicial ethics in Kentucky and striking down several of them as unconstitutional.  Specifically, it struck Kentucky’s provisions restricting candidates from judicial office from “campaigning as a member of a political organization,” struck part of the prohibition on making “speeches for or against a political organization or candidate or publicly endors[ing] or oppos[ing] a candidate for public office,” struck the prohibition on political donations, and struck the prohibition on engaging in “any other political activity except on behalf of measures to improve the law, the legal system, or the administration of justice.  The Winter decision also struck Kentucky’s prohibition on judicial candidates making misleading statements.  Most importantly, because it is the issue that  really tends to be the “54/40 or fight line” when it comes to restrictions on judicial campaign speech, the federal district court found that — with respect to cases or controversies — Kentucky can prohibit pledges and promises, but as to issues, taking its lead from the Sixth Circuit’s analysis in Carey v. Wolnitzek, the federal district court said the restriction must fall.

Interestingly, as to the “campaigning as a member of a political organization,” provision, that was struck on void for vagueness grounds because the court treated the provision — in light of the ruling of the Kentucky Supreme Court on certification — as applying to any statement that said, or implied, that a person was a party’s official nominee.  (This is the context of my favorite quote from the opinion — if the Kentucky Supreme Court says that “arson” means “whale hunting,” then “whale hunting is what arson means.”  It also struck the “improve the law” provision on void for vagueness grounds as well – for more obvious reasons.  The other provision it found unconstitutionally vague was the prohibition on misleading statements.

It upheld, but only facially, the Kentucky prohibition on serving as a leader of a political organizations or holding any office in a political organization.  It also upheld the prohibition on judges making false statements while campaigning, but it did not provide an answer to whether one judge’s statement that she wanted to be “re-elected” was a false statement that could be constitutionally punished under that provision when she had been appointed and was not standing for election for the first time.

As to making speeches, the Kentucky court differentiated between political organizations and candidates, finding that, if as the Sixth Circuit indicates in Carey, you cannot stop a judge from self-identifying with a political party, then necessarily it means they can publicly speak in favor of their chosen party.  The court found endorsements, however, to be something altogether different causing it to venture off into a discussion of “high politics v. low politics.”  Yet, in hair-splitting fashion, the court does think it’s okay to give a speech favoring or opposing a particular candidate.  As to the pledges and promises issue, it found that changes that had been made to that provision in Kentucky, post-Carey didn’t change the outcome on constitutionality because the effort to limit application of the ban to pledges or promises that were  “inconsistent with the impartial performance of the adjudicative duties of judicial office” was really little more than question begging.

More challenges are almost certainly guaranteed.  In Tennessee, for example, our judicial ethics rules presently still seek to prohibit candidates for judicial office from “mak[ing] speeches on behalf of a political organization,” (Rule 10, RJC 4.1(A)(2)); “knowingly, or with reckless disregard for the truth, mak[ing] any false or misleading statement,” (Rule 10, RJC 4.1(A)(11)); and “in connection with cases, controversies, or issues that are likely to come before the court, mak[ing] pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.” (Rule 10, RJC 4.1(A)(13)).