Jul 30 2010
Two federal appeals courts have struck down states laws prohibiting judicial candidates from directly soliciting campaign funds. The Sixth and Eighth circuit courts have recently ruled that clauses in Kentucky and Minnesota, respectively, that prohibit this solicitation, violate the First Amendment.
The Sixth Circuit in Carey v. Wolnitzek, which examined a Kentucky solicitation canon explained that the distinction between indirect and direct solicitation may be nothing more than mere semantics:
Although the clause prevents judicial candidates from saying “please, give me a donation,” it does not prevent them from saying “thank you” for a donation given. The clause bars any solicitation, whether in a large group or small one, whether by letter or one on one, but it does not bar the candidate from learning how individuals responded to the committee’s solicitations. That omission suggests that the only interest at play is the impolitic interpersonal dynamics of a candidate’s request
for money, not the more corrosive reality of who gives and how much. If the purported risk addressed by the clause is that the judge or candidate will treat donors and non-donors differently, it is knowing who contributed and who balked that makes the difference, not who asked for the contribution.
In the Wersal v. Sexton decision, which came down July 29, the Eighth Circuit examined a similar clause in Minnesota, and came to an analogous conclusion:
…restricting a candidates from personally soliciting funds does not address the state’s interest in a non-biased judiciary.
These decisions touch on a fundamental point: If states choose to elect judges in partisan elections in the same way as elected officials in other branches of government, the elections will include skyrocketing spending and partisan politics. Its time to find a better way – merit selection – to ensure our courts are not beholden to campaign contributions and the whims of the left or right.