No. VU-­‐SUPP 2013 In the Supreme Court of the United States
_____
MEL BLATHERTON,
Petitioner,
v.
KENT BARNEY, CHAIRMAN, in his official capacity; and EAGLETON BOARD OF
JUDICIAL CONDUCT, and its members, not individually named, but in their capacity as
members of the Board,
Respondents.
_____
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
THIRTEENTH CIRCUIT
_____
BRIEF FOR KENT BARNEY, CHAIRMAN, IN HIS OFFICIAL CAPACITY; AND
EAGLETON BOARD OF JUDICIAL CONDUCT, AND ITS MEMBERS, NOT
INDIVIDUALLY NAMED, BUT IN THEIR CAPACITY AS MEMBERS OF THE
BOARD
_____
Team R
STATEMENT OF ISSUES
1. What is the proper level of scrutiny under which Canon 4 of the Code of Judicial Conduct of
the State of Eagleton should be analyzed?
2. Does Canon 4 of the Code of Judicial Conduct of the State of Eagleton violate the Free
Speech Clause of the First Amendment?
i TABLE OF CONTENTS
STATEMENT OF ISSUES .......................................................................................................................................... i TABLE OF CONTENTS ............................................................................................................................................. ii TABLE OF AUTHORITIES ..................................................................................................................................... iii STATEMENT OF JURISDICTION .......................................................................................................................... 1 STATEMENT OF THE CASE ................................................................................................................................... 1 STATEMENT OF THE FACTS ................................................................................................................................ 2 SUMMARY OF THE ARGUMENT ......................................................................................................................... 6 ARGUMENT .................................................................................................................................................................. 8 I. CANON 4 DOES NOT RESTRICT POLITICAL SPEECH AND IS SUBJECT TO ‘CLOSELY DRAWN’ SCRUTINY AS A CAMPAIGN FINANCE REGULATION ....................................................... 8 A. Regulations on campaign contributions, like Canon 4, are subject to ‘closely drawn’ scrutiny ................................................................................................................................................ 8 1. Canon 4 implicates associational freedoms, but leaves alone speech such as political expenditures and endorsements ....................................................................................... 9 2. ‘Closely drawn’ scrutiny applies to Canon 4 because it regulates campaign contributions under the same anticorruption rationale as in Buckley ............................ 11 B. Regulating solicitations for campaign funds in nonpartisan judicial elections is not a restriction on core political speech and is not subject to strict scrutiny .......................... 12 1. Personally soliciting campaign funds is not protected speech about the views or qualifications of judicial candidates subject to strict scrutiny in White I ....................... 13 2. Limiting the personal solicitation of campaign contributions does not negatively impact the quality of political discourse in nonpartisan judicial elections .................... 14 II. CANON 4 SATISFIES THE “COMPELLING INTEREST” TEST OF STRICT SCRUTINY, AND THUS ALSO SATISFIES THE “SUFFICIENTLY IMPORTANT” TEST OF INTERMEDIATE SCRUTINY .......................................................................................................................... 17 A. Maintaining actual judicial impartiality for or against a party is a compelling interest, and as such is also sufficiently important ....................................................................... 18 B. Maintaining apparent judicial impartiality for or against a party is a compelling interest, and as such is also sufficiently important ....................................................................... 19 III. CANON 4 IS NARROWLY TAILORED, AND THUS IS ALSO CLOSELY DRAWN ............. 20 A. Canon 4 actually advances Eagleton’s interest in an impartial judiciary by preventing the most insidious opportunities for actual or apparent bias to occur ........ 21 B. Prohibiting solicitations to groups of less than twenty is neither impermissibly overinclusive nor underinclusive ......................................................................................................... 22 C. Canon 4 could be replaced by no other regulation that could advance the interest as well with less infringement of speech ........................................................................................... 27 IV. CANON 4 ALSO MEETS ‘CLOSELY DRAWN’ SCRUTINY INDEPENDENTLY OF THE STRICT SCRUTINY ANALYSIS ...................................................................................................................... 28 CONCLUSION ........................................................................................................................................................... 29 ii TABLE OF AUTHORITIES
Cases Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010) ............................................................................... 9, 13, 14 Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477, 20 L. Ed. 2d 522 (1968) ............................................. 8 Brandenburg v. Ohio, 395 U.S. 444 (1969) .................................................................................................... 18 Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224 (7th Cir. 1993) ................................................. 23 Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) ........................................ passim Burson v. Freeman, 504 U.S. 191, 112 S. Ct. 1846, 119 L. Ed. 2d 5 (1992) ...................................... 28 Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 129 S. Ct. 2252, 173 L. Ed. 2d 1208
(2009) .................................................................................................................................................. 7, 20, 30, 31 Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010) ........................................................................ 13, 14, 30 Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753
(2010) ............................................................................................................................................... 12, 13, 16, 25 Fed. Election Comm'n v. Nat'l Right to Work Comm., 459 U.S. 197, 103 S. Ct. 552, 74 L. Ed. 2d
364 (1982) ..................................................................................................................................................... 18, 20 Fla. Star v. B.J.F., 491 U.S. 524, 109 S. Ct. 2603, 105 L. Ed. 2d 443 (1989) ..................................... 29 In re Dunleavy, 838 A.2d 338 (Me. 2003) ...................................................................................................... 26 In re Fadeley, 802 P.2d 31 (Or. 1990) .............................................................................................................. 25 In re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942 (1955) ..................................................... 22 Johnson v. Mississippi, 403 U.S. 212, 91 S. Ct. 1778, 29 L. Ed. 2d 423 (1971) .................................. 8 McConnell v. Fed. Election Comm'n, 540 U.S. 93, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003)
.......................................................................................................................................................................... passim McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995) 15 Mistretta v. United States, 488 U.S. 361, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989) ....................... 22 Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377, 120 S. Ct. 897, 145 L. Ed. 2d 886 (2000) 12, 32 Offutt v. United States, 348 U.S. 11, 75 S. Ct. 11, 99 L. Ed. 11 (1954) ............................................... 22 Republican Party of Minnesota v. White, 416 F.3d 738 (8th Cir. 2005) (White II) ................. 23, 26 Republican Party of Minnesota v. White, 536 U.S. 765, 122 S. Ct. 2528, 153 L. Ed. 2d 694
(2002) (White I) ............................................................................................................................... 7, 15, 16, 21 Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010) ............................................................................. passim Tumey v. Ohio, 273 U.S. 510 (1927) ................................................................................................................... 7 Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002) ..................................................................................... 14 Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972) aff'd, 409 U.S. 1095, 93 S. Ct. 904, 34 L.
Ed. 2d 679 (1973) ............................................................................................................................................... 17 Wersal v. Sexton, 674 F.3d 1010 (8th Cir. 2012) cert. denied, 133 S. Ct. 209, 184 L. Ed. 2d 40
(U.S. 2012) .................................................................................................................................................... 22, 26 Statutes 28 U.S.C § 1291 .......................................................................................................................................................... 6 28 U.S.C. § 1254 ......................................................................................................................................................... 6 28 U.S.C. § 1331 ......................................................................................................................................................... 6 42 U.S.C. § 1983 ......................................................................................................................................................... 6 iii Other Authorities Anthony J. Delligatti, A Horse of A Different Color: Distinguishing the Judiciary from the
Political Branches in Campaign Financing, 115 W. Va. L. Rev. 401, 426 (2012) ....................... 21 Br. of Former Governor & Chief Justices as Amici Curiae 3 ................................................................... 29 Greenberg Quinlan Rosner Research & American Viewpoint, Justice At Stake State Judges
Frequency Questionnaire, Q.12 at 5 (2002) ............................................................................................... 27 John Copeland Nagle, The Recusal Alternative to Campaign Finance Legislation, 37 Harv. J. on
Legis. 69, 87 (2000). .......................................................................................................................................... 34 Kathleen Hall Jamieson and Michael Hennessy, Public Understanding and Support for the
Courts: Survey Results, 95 Geo. L.J. 899, 901 (2007) ........................................................................... 27 Randall T. Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9 Geo. J. Legal
Ethics 1059 (1996) ............................................................................................................................................. 34 iv STATEMENT OF JURISDICTION
The District Court of Eagleton had jurisdiction under 28 U.S.C. § 1331. Pursuant to the
timely appeal of Appellants Kent Barney and the Eagleton Board of Judicial Conduct, the Court
of Appeals for the Thirteenth Circuit exercised jurisdiction under 28 U.S.C § 1291. Pursuant to
timely appeal by Petitioner Mel Blatherton, this Court granted certiorari on May 20, 2013. The
subject-matter jurisdiction of this appeal is provided by 28 U.S.C. § 1254.
STATEMENT OF THE CASE
On February 15, 2012, the District Court of Eagleton issued its decision on cross-motions
for summary judgment in a 42 U.S.C. § 1983 federal civil rights action against Respondents Kent
Barney, in his official capacity as Chairman of the Eagleton Board of Judicial Conduct, and the
members, not individually named, of the Eagleton Board of Judicial Conduct in their official
capacities (all collectively referred to as the “Board”).
Judge Spader found that Board’s
decision, on February 28, 2011, to fine Petitioner Mel Blatherton $20,000 for violating Cannon 4
of the Code of Judicial Conduct of the State of Eagleton violated her right to free speech under
the First Amendment. On December 10, 2012, the Court of Appeals for the Thirteenth Circuit
reversed summary judgment for Blatherton on grounds that the District Court did not apply the
appropriate level of scrutiny to the Board’s enforcement of Cannon 4. The Court of Appeals for
the Thirteenth Circuit ordered summary judgment for Respondents. This Court granted certiorari
on May 20, 2013.
1 STATEMENT OF THE FACTS
The facts in this case, as stipulated in the parties’ Joint Statement of Undisputed Facts,
are not in dispute. Petitioner Mel Blatherton is a licensed attorney in Eagleton. (R. 4). She
graduated as valedictorian of her class at the University of Eagleton College of Law more then
thirty years ago and has practiced law in Eagleton ever since. (R. 4). Blatherton has won several
million dollars in favorable jury verdicts in her civil rights practice. (R. 4). However, she has
chosen to forego attorney’s fees (normally only 10% of any damages award) whenever her
annual income has exceeded $100,000. (R. 4).
On January 3, 2011, Blatherton formally entered a special election to fill a vacant seat on
the Eagleton Supreme Court. (R. 7). On December 15, 2010, Eagleton’s governor had ordered a
special election for this vacant seat on the court to be held on August 1, 2011.
(R. 7).
Nonpartisan judicial elections for fourteen-year terms in the seven seats on the Eagleton
Supreme Court have been required in Eagleton since an 1852 amendment to Eagleton’s
constitution by popular referendum. (R. 6). Blatherton established a campaign committee in
accordance with Cannon 4 of the Code of Judicial Conduct of the State of Eagleton to conduct
financing activities for her campaign. (R. 7). Due to her self-imposed austerity, she would rely
on the committee to largely fund her campaign through donations. (R. 7). These donations came
from both in-state and out-of-state supporters, interest groups, and activists. One such supporter,
Eagletonians for Equality (EFE), has a long history of affiliation with Blatherton, but did not
donate to Blatherton’s campaign prior to February 6, 2011. (R. 7).
Blatherton’s affiliation with EFE began when she was a first-year student in law school.
(R. 5). During law school, Blatherton attended EFE meetings and volunteered for EFE-led
letter-writing campaigns, canvassing, marches, and other activities in support of equality for
2 Lesbian, Gay, Bisexual, and Transgender (LGBT) Eagletonians. (R. 5). After law school,
Blatherton continued to attend EFE meetings twice each year, and was a registered member. (R.
5). In the past five years, Blatherton has marched in EFE-sponsored political rallies three times,
most recently on July 20, 2010.
(R. 5).
Despite this long history of civic engagement,
Blatherton has never held a formal title or served as an officer within EFE. (R. 5). On January
2, 2011, one day before entering the special election, Blatherton withdrew her membership from
EFE. (R. 7).
However, Blatherton’s affiliation with EFE did not end. (R. 8). On January 15, 2011,
Robert Norsky, the President of EFE called Blatherton at her law office to request that she speak
at a “small, private fundraising event” on behalf of EFE. (R. 8). Blatherton agreed and on
January 31, 2011, she spoke for 45 minutes to fifteen local businesspeople, attorneys, and
government officials to promote EFE’s activities and secure donations to EFE.
(R. 8).
Blatherton was fifth in a series of five similar fundraising events. (R. 8). At the four previous
events, each speaker had discussed Stein v. Ratford, a case challenging Eagleton’s constitutional
ban on same-sex marriage. (R. 8). The Eagleton Supreme Court would decide this case in the
coming term. (R. 6). However, Blatherton did not express her views on that case, or on the issue
of gay marriage in general. (R. 7). Blatherton spoke on the importance of training young
lawyers for public service work, strengthening Eagleton’s public defender system, and
improving the access to justice for indigent populations; all in addition to highlighting the
advocacy that EFE conducts and its benefits to the community. (R. 8). Her speech concluded:
“And if you support everything that I have discussed tonight, you can donate to my campaign so
that I can make these ideals into realities!” (R. 9).
3 After giving her speech at the EFE event, Blatherton raised a total of $96,000 dollars for
her own judicial campaign from thirteen of the fifteen in-person attendees at the event. (R. 11).
The largest donation from the in-person attendees was $19,000 while the smallest was $1,500.
(R. 11). The event was also broadcast over the Internet, though it was only accessible only by
EFE members. (R. 11). Eighty-two of the 110 viewers who watched the speech over the
Internet donated a total of $17,000 (an average of $207 per online viewer – the largest online
donation was $2,000). (R. 11). On the EFE website publicizing Blatherton’s speech, EFE had
included links to its own donation website and the link to donate to Blatherton’s own campaign
for the bench. (R. 8). On February 6, 2011, one week after Blatherton’s speech, EFE itself
donated $200,000 to Blatherton’s campaign. (R. 11).
The morning after Blatherton’s speech, her opponent in the special election, George
Pikitis, reported Blatherton to the Eagleton Board of Judicial Conduct. (R. 9). After a full
investigation and hearing, the Board rendered its decision on February 28, 2011. (R. 11). The
Board concluded that Blatherton violated Cannon 4 of the Code by soliciting campaign
donations from the fifteen people in attendance at the EFE fundraising event.
(R. 11).
Notwithstanding the Internet broadcast of the speech, Blatherton’s solicitation for campaign
donations from only fifteen people “was enough to create actual and, at the very least, an
appearance of partiality.” (R. 11). The Board fined Blatherton $20,000 for the violation. (R.
11).
After the Board’s decision, Pikitis ran a negative campaign against Blatherton charging
that she was “in the pocket” on large campaign contributors. (R. 11). Based on both low polling
numbers and a popular late entry to the race, Blatherton withdrew from the special election.
Pikitis consequently won the August 1, 2011 election. (R. 11).
4 Blatherton resolved to run for a seat on the Supreme Court of Eagleton in 2014. (R. 12).
She has consequently brought this suit in order to “rehabilitate her public image” by enjoining
the Board’s decision. (R. 12). Blatherton alleges that the Board’s interpretation of Cannon 4’s
solicitation clause violates her First Amendment rights. (R. 12).
5 SUMMARY OF THE ARGUMENT
In 1852, Eagleton’s constitution was amended by voter referendum to provide for the
nonpartisan election of justices for fourteen-year terms to the seven seats on the Eagleton
Supreme Court. (R. 6). Candidates for these elections enjoy First Amendment protection to
speak on their opinions, legal views, and qualifications for office in order to gain the support of
the electorate. Republican Party of Minnesota v. White, 536 U.S. 765, 122 S. Ct. 2528, 153 L.
Ed. 2d 694 (2002) (White I). At the same time, Eagleton takes seriously its responsibility to
protect the rights of its citizens, including the right to stand before judges with no “direct,
personal, substantial pecuniary interest[s]” in the outcomes of trials. Tumey v. Ohio, 273 U.S.
510, 523 (1927). Eagleton enacted Canon 4 of its Code of Judicial Conduct because “judges and
judicial candidates must, to the greatest extent possible, be, and appear to be, impartial.” (R. 10).
Canon 4 of Eagleton’s Code of Judicial Conduct requires that judicial candidates solicit
campaign contributions from individuals and small groups through third-party campaign
committees rather than in-person. (R. 9). Personal solicitations for campaign contributions by
nonpartisan judicial candidates have the potential to “closely link[] the quid-avoiding the judge's
future disfavor-to the quo-the contribution.” Siefert v. Alexander, 608 F.3d 974, 989 (7th Cir.
2010). In the context of judicial elections, Canons of Judicial Conduct are “[t]he principal
safeguard against judicial campaign abuses that threaten to imperil public confidence in the
fairness and integrity of the nation's elected judges.” Caperton v. A.T. Massey Coal Co., Inc.,
556 U.S. 868, 889, 129 S. Ct. 2252, 2266, 173 L. Ed. 2d 1208 (2009) (internal quotations
omitted).
Canon 4 does not restrict speech at the core of our First Amendment freedoms; it merely
establishes a mechanism for campaign contributions that avoids the appearance of bias for or
6 against particular parties that might appear before a candidate when she becomes a judge. For
this reason, Canon 4 is rightly analyzed as a campaign contribution limit under an intermediate
level scrutiny requiring that Eagleton “demonstrate[] a sufficiently important interest and
employ[] means closely drawn to avoid unnecessary abridgment of associational freedoms.”
Buckley v. Valeo, 424 U.S. 1, 25, 96 S. Ct. 612, 638, 46 L. Ed. 2d 659 (1976). Because
contributions to judicial elections carry with them the same concern for actual and apparent quid
pro quo that was at the core of Buckley’s rationale, Canon 4 fits most appropriately within
Buckley’s ‘closely drawn’ scrutiny.
Furthermore, Canon 4 satisfies the “compelling interest” test of strict scrutiny, and thus
also satisfies the “sufficiently important” test of intermediate scrutiny. Canon 4 was enacted to
ensure that “judges and judicial candidates . . .be, and appear to be, impartial.” (R. 10). Due
Process guarantees a litigant the right to stand trial before an unbiased judge. See Johnson v.
Mississippi, 403 U.S. 212, 216, 91 S. Ct. 1778, 1780, 29 L. Ed. 2d 423 (1971) (per curiam)
(“Trial before ‘an unbiased judge’ is essential to due process.”) (quoting Bloom v. Illinois, 391
U.S. 194, 205, 88 S. Ct. 1477, 1484, 20 L. Ed. 2d 522 (1968)). Furthermore, the judicial system
depends on its reputation for impartiality; it is public acceptance, rather than the sword or the
purse, which leads decisions to be obeyed and averts vigilantism and civil strife. Bauer v.
Shepard, 620 F.3d 704, 712 (7th Cir. 2010).
Canon 4 is narrowly tailored, in that it actually advances Eagleton’s interest in an
impartial judiciary, is neither impermissibly overinclusive nor underinclusive, and is the least
restrictive means available. By satisfying strict scrutiny, Canon 4 also satisfies the less rigorous
“closely drawn” test in Buckley. Canon 4 also survives the alternative “closely drawn” analysis,
independent from strict scrutiny analysis. As such, Canon 4 is Constitutional.
7 ARGUMENT
I.
CANON 4 DOES NOT RESTRICT POLITICAL SPEECH AND IS SUBJECT
TO ‘CLOSELY DRAWN’ SCRUTINY AS A CAMPAIGN FINANCE
REGULATION
Eagleton’s Code of Judicial Conduct imposes campaign finance regulations to ensure that
judicial candidates solicit donations for their campaigns through third-party campaign finance
committees in situations were personal solicitation would create the risk of actual or apparent
bias. For this reason, they are properly examined as campaign finance limits that are subject to
‘closely drawn’ scrutiny. Buckley v. Valeo, 424 U.S. 1, 25, 96 S. Ct. 612, 638, 46 L. Ed. 2d 659
(1976). Because the Code of Judicial Conduct does not limit political speech at the core of our
First Amendment freedoms, it is not rightly subject to strict scrutiny. Moreover, since campaign
contributions play a different role in judicial elections, limiting solicitations for such donations
poses no risk to the quality of political discourse in Eagleton. On the contrary, to permit either
actual quid pro quo in judicial campaigns or the appearance thereof would be a failure on the part
of Eagleton to safeguard the integrity of its judicial election process.
A. Regulations on campaign contributions, like Canon 4, are subject to ‘closely
drawn’ scrutiny
When considering campaign finance regulations, the Court has long made a distinction
between regulations on political expenditures and limits on campaign contributions. Buckley v.
Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Because limits on expenditures
implicate speech rights directly, they are subject to strict scrutiny. Id. at 16. In contrast,
campaign contributions may communicate a degree of support for a candidate, but they often
become speech only when someone else, namely the candidate, expends those contributions. Id.
at 24.
As such, contribution limits are more properly analyzed from the perspective of
8 associational rights with such limits justified where “the State demonstrates a sufficiently
important interest and employs means closely drawn to avoid unnecessary abridgment of
associational freedoms.” Id. at 25 (emphasis added). Because Cannon 4’s ban on personal
solicitations for judicial campaign contributions fits within the anticorruption rationale of
Buckley, Canon 4 should be analyzed under Buckley’s ‘closely drawn’ scrutiny as was done in
the 7th Circuit and the Court of Appeals below.
1. Canon 4 implicates associational freedoms, but leaves alone speech such as
political expenditures and endorsements
While speech in the context of political campaigns invokes the highest level of protection
by the First Amendment, the Court has recognized important distinctions between independent
expenditures in a political campaign and financial contributions to a candidate. In Buckley v.
Valeo, the Court struck down portions of the Federal Election Campaign Act on the basis that the
Act impermissibly abridged speech in the form of independent political expenditures, but upheld
limits on direct campaign contributions. Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed.
2d 659 (1976) overruled in part McConnell v. Fed. Election Comm'n, 540 U.S. 93, 124 S. Ct.
619, 157 L. Ed. 2d 491 (2003).
The Court reasoned that while limits on independent
expenditures restricted speech directly (and were thereby subject to strict scrutiny), limits on
campaign contributions “entail[ed] only a marginal restriction upon the contributor's ability to
engage in free communication.” Id. at 20. This is because independent expenditures advance
political discourse directly, while “the transformation of contributions into political debate
involves speech by someone other than the contributor.” Id. at 21. Moreover, a contribution to a
political candidate serves as a “general expression” of support for that candidate, but does not, by
itself, “communicate the underlying basis for the support.” Id. at 21. The Court concluded that
9 limits on campaign contributions “do not undermine to any material degree the potential for
robust and effective discussion” of the candidates and issues in a campaign. Id. at 29. However,
as far as contribution limits restricted the ability for citizens to associate with candidates of their
choosing, the Court found “contribution ceilings . . . limit one important means of associating
with a candidate or committee, but leave the contributor free to become a member of any
political association and to assist personally in the association's efforts on behalf of candidates.”
Id. at 22.
Further, both actual and apparent quid pro quo as a result of large campaign
contributions justified contribution limits as a means of protecting the integrity of political
elections.
Id. at 26-27.
Therefore, contribution limits may be sustained if “the State
demonstrates a sufficiently important interest and employs means closely drawn to avoid
unnecessary abridgment of associational freedoms.” Id. at 25 (emphasis added). This has
become known as ‘closely drawn’ scrutiny. See Nixon v. Shrink Missouri Gov't PAC, 528 U.S.
377, 387-88, 120 S. Ct. 897, 904, 145 L. Ed. 2d 886 (2000).
Since Buckley v. Valeo, the Court has again considered federal campaign finance
regulations, but has maintained the distinction in scrutiny between contribution limits and
independent expenditures. In McConnell v. FEC, the Court considered a challenge to the
Bipartisan Campaign Reform Act of 2002 (BCRA). McConnell v. Fed. Election Comm'n, 540
U.S. 93, 124 S. Ct. 619, 626, 157 L. Ed. 2d 491 (2003). While the Court recognized the BCRAamended language of the Federal Election Campaign Act superseded Buckley’s holdings with
respect to expenditures, the Court upheld and followed Buckley’s holdings with respect to
contribution limits. Id. at 137 (“Buckley's ‘closely drawn’ scrutiny . . . shows proper deference
to Congress' ability to weigh competing constitutional interests in an area in which it enjoys
particular expertise.”). In 2010, the Court overruled McConnell with respect to expenditure
10 limits under BCRA, but again affirmed Buckley’s reasoning with respect to treating contribution
limits under a different level of scrutiny. Citizens United v. Fed. Election Comm'n, 558 U.S.
310, 345, 130 S. Ct. 876, 901-02, 175 L. Ed. 2d 753 (2010) (“The Buckley Court explained that
the potential for quid pro quo corruption distinguished direct contributions to candidates from
independent expenditures.”) (emphasis in original).
Citizens United demonstrates that the Court’s First Amendment jurisprudence continues
to recognize a lower level of scrutiny for campaign contribution limitations based on the anticorruption interest they serve and their limited impact on actual speech. Canon 4 belongs under
closely drawn scrutiny because, like the statute in Buckley, it limits campaign contributions in
situations where the appearance of quid pro quo puts the fairness of Eagleton’s elections at risk:
during personal solicitations by nonpartisan judicial candidates to individuals or small groups.
2. ‘Closely drawn’ scrutiny applies to Canon 4 because it regulates campaign
contributions under the same anticorruption rationale as in Buckley
Courts have applied Buckley’s ‘closely drawn’ scrutiny to solicitation clauses similar to
the one in Canon 4. In Siefert v. Alexander, the 7th Circuit applied closely drawn scrutiny to a
Wisconsin Supreme Court Rule barring judicial candidates from soliciting campaign donations
except through a campaign committee. Siefert v. Alexander, 608 F.3d 974 (7th Cir. 2010). The
7th Circuit reasoned that the solicitation ban did not restrict how judicial candidates spent money
on their campaigns, just how they raised it. Id. at 988. For this reason, closely drawn scrutiny
was appropriate. Id. at 988; see also Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010) (applying
Siefert to a similar solicitation ban in Indiana).
However, both the 6th and 11th Circuits have applied strict scrutiny to solicitation bans
for judicial candidates. Carey v. Wolnitzek, 614 F.3d 189, 204 (6th Cir. 2010); Weaver v.
11 Bonner, 309 F.3d 1312, 1321 (11th Cir. 2002). Both cases dealt with solicitation bans that
completely barred judicial candidates from soliciting funds except through a committee. Carey,
614 F.3d at 195; Weaver, 309 F.3d at 1315. In contrast, the solicitation bans in Siefert and Bauer
banned only personal solicitations and provided the possibility for exceptions, including
appearing at campaign fundraising events. Siefert, 608 F.3d at 979; Bauer, 620 F.3d at 709-710.
Here, Eagleton’s Canon 4 applies only to personal solicitations to individuals or small groups;
they are not the blanket bans considered by the 6th and 11th Circuits. Because personal
solicitations most directly raise the specter of quid pro quo, analyzing Canon 4 under closely
drawn scrutiny hews most closely to the anticorruption rationale in Buckley.
Like the
contribution limits in Buckley, Cannon 4 is designed to combat corruption in the aspect of
Eagleton’s judicial campaigns where it most naturally rises, but leaves political speech alone in
situations where the danger of quid pro quo is lessened.
B. Regulating solicitations for campaign funds in nonpartisan judicial elections is
not a restriction on core political speech and is not subject to strict scrutiny
When a judicial candidate personally solicits funds for her judicial election, her speech is
merely the instrument by which she initiates a contribution to her campaign, not an expression of
core political speech. Eagleton properly regulates personal solicitations as a means to ensure that
the financial transactions that fund a judge’s campaign are conducted in a way that promotes the
fairness and integrity of Eagleton’s judiciary. Canon 4 regulates the transactions that make up
campaign contributions, not speech core to the political process.
Further, campaign
contributions do not have the same constituency-building role within political discourse in
judicial elections as they have in legislative or executive elections. As such, limiting personal
solicitations for donations to judicial candidates does not materially restrict Eagleton’s political
12 discourse. For these reasons, Cannon 4 does not limit core political speech; it is merely a
campaign finance regulation.
1. Personally soliciting campaign funds is not protected speech about the views or
qualifications of judicial candidates subject to strict scrutiny in White I
The restriction on personally soliciting campaign funds does not prevent judicial
candidates from expressing views on political or legal issues; it only regulates how campaign
finance transactions are conducted. Speech by candidates for political office “occupies the core
of the protection afforded by the First Amendment.” McIntyre v. Ohio Elections Comm'n, 514
U.S. 334, 346, 115 S. Ct. 1511, 1518, 131 L. Ed. 2d 426 (1995). This protection applies to
candidates for judicial office when they announce their views on the law and qualifications for
office. Republican Party of Minnesota v. White, 536 U.S. 765, 122 S. Ct. 2528, 153 L. Ed. 2d
694 (2002) (White I). In White I, the Court invalidated an ‘Announce Clause’ that forbade
judicial candidates from announcing their views on political and legal issues. Justice Scalia,
writing for the Court, found that the Announce Clause restricted “speech on the basis of its
content and burden[ed] a category of speech . . . at the core of our First Amendment freedoms . .
. speech about the qualifications of candidates for public office.” White I, 536 U.S. at 774
(internal quotations omitted). Strict scrutiny was applied by the Court of Appeals, a conclusion
uncontested by the parties (unlike here) and accepted by the Court. White I, 536 U.S. at 774.
In contrast with the Announce Clause at issue in White I, Canon 4 does not implicate a
candidate’s ability to speak about her political views or qualifications for office. Asking to
initiate a financial transaction to fund a campaign does not communicate political or legal
opinions. Such requests “shed little, if any, light on [a candidate’s] capacity for judicial service.”
White I, 536 U.S. at 798 (Stevens, J., dissenting). Rather, Canon 4 only prevents a judicial
13 candidate from personally initiating a financial transaction to fund her campaign when that
transaction is with an individual or small group. (R. 9). Canon 4 requires instead that a thirdparty campaign committee initiate such a campaign contribution transaction on the candidate’s
behalf because personal solicitations to individuals or small groups raise the appearance of quid
pro quo. (R. 9). Protecting the speech of political candidates serves an important interest in our
democracy: to permit voters to gather all relevant information on issues of the day before they
cast their votes. White I, 536 U.S. at 782. However, not every word uttered by candidate
advances that interest. To the extent that Eagleton must meet its fundamental responsibility to
conduct fair elections, “there are certain governmental functions that cannot operate without
some restrictions on particular kinds of speech.” Citizens United v. Fed. Election Comm'n, 558
U.S. 310, 341, 130 S. Ct. 876, 899, 175 L. Ed. 2d 753 (2010). Because Canon 4 only restricts
the way in which campaign contribution transactions are initiated, not core political speech
about the candidate’s views or qualifications, it is rightly analyzed in the context of campaign
finance regulation.
As in Buckley, Canon 4 “involves little direct restraint on [] political
communication, for it permits the symbolic expression of support evidenced by a contribution
but does not in any way infringe the contributor's freedom to discuss candidates and issues.”
Buckley, 424 U.S. at 21. Canon 4 does not prevent candidates from expressing their views on
legal issues, nor does it prevent all solicitations. It only restricts the way campaign contribution
transactions are carried out when the potential donor is an individual or small group.
2. Limiting the personal solicitation of campaign contributions does not negatively
impact the quality of political discourse in nonpartisan judicial elections
Campaign contribution limits are an appropriate means to protect the impartiality and
reputation for fairness among Eagleton’s judiciary without sacrificing the quality of Eagleton’s
14 democratic discourse. Eagleton recognized when it enacted Canon 4 that “[r]ather than making
decisions based upon the expressed views or preferences of the electorate, a judge makes
decisions based upon the law and the facts of every case.” (R. 10). The difference between
political (executive or legislative) officers and elected judges is that “[j]udges do not represent
people, they serve people.” Wells v. Edwards, 347 F. Supp. 453, 455 (M.D. La. 1972) aff'd, 409
U.S. 1095, 93 S. Ct. 904, 34 L. Ed. 2d 679 (1973). Instead of “managing and governing people,”
a judge’s role is “to administer the law, not to [e]spouse the cause of a particular constituency.”
Id. at 454 (internal quotations omitted). Extrapolating from the principle in Wells v. Edwards,
Canon 4’s limits on campaign contributions should not be seen as a threat to the political process
in Eagleton. The role of judges is not to enact the will of a coalition of supporters, but to serve
all citizens equally by fair-mindedly ruling on the merits of individual cases.
Eagleton’s
campaign finance rules must reflect the realities of a judge’s job; limits that Cannon 4 helps to
delineate. See Anthony J. Delligatti, A Horse of A Different Color: Distinguishing the Judiciary
from the Political Branches in Campaign Financing, 115 W. Va. L. Rev. 401, 426 (2012).
Campaign contribution solicitations are an appropriate target for regulation because the
process of financially contributing to political candidates who will ultimately serve particular
constituencies cannot rightfully be transferred onto nonpartisan judicial elections like those in
Eagleton.
Campaign contributions cannot establish and gauge the interests of a judge’s
constituency because a judge’s “constituency” is all citizens, not an amicable subset thereof. All
citizens have the same interest: a just, competent, and impartial judiciary. To the extent that
soliciting for donations entitles supporters more access to justice, or the appearance thereof, such
solicitations only invite lawlessness in our society. See Brandenburg v. Ohio, 395 U.S. 444
(1969). Eagleton enacted Canon 4 to ensure that its constitutionally mandated elections are
15 conducted in a way that stamps out the lawlessness of corruption and fills its highest bench with
the fair-minded jurists that Eagelton deserves.
Canon 4 should be viewed as an election
regulation that enlivens that noble purpose. Analyzing Canon 4 under closely drawn scrutiny
recognizes Eagleton’s interest in conducting fair elections free of the most pernicious
opportunities for corruption. See Fed. Election Comm'n v. Nat'l Right to Work Comm., 459 U.S.
197, 210, 103 S. Ct. 552, 561, 74 L. Ed. 2d 364 (1982) (“Nor will we second guess a legislative
determination as to the need for prophylactic measures where corruption is the evil feared”).
There has also been no evidence that Canon 4 prevented Blatherton from mounting a
viable campaign such that Eagleton’s political discourse was made to suffer an unfair contest. In
Buckley, the court recognized that “contribution restrictions could have a severe impact on
political dialogue if the limitations prevented candidates and political committees from amassing
the resources necessary for effective advocacy.” Buckley, 424 U.S. at 21. In that case, the Court
found no indication that the contribution limits at issue “would have any dramatic adverse effect
on the funding of campaigns and political associations.” Id. Just like in Buckley, Canon 4
leaves open myriad opportunities (through a third-party campaign committee and blanket
solicitations) to amass the resources necessary for the healthy pubic debate that emerges from
contested elections. In fact, Blatherton withdrew from the race because of the scandal connected
with violating this Canon, not because this Canon hamstrung her ability to raise funds to run. (R.
11).
Because Cannon 4 does not restrict core political speech or the political discourse of
Eagleton, but only operates as a campaign finance regulation that prevents corruption among
Eagleton’s elected judiciary, it is properly examined under closely drawn scrutiny.
16 II.
CANON 4 SATISFIES THE “COMPELLING INTEREST” TEST OF STRICT
SCRUTINY, AND THUS ALSO SATISFIES THE “SUFFICIENTLY
IMPORTANT” TEST OF INTERMEDIATE SCRUTINY
To satisfy strict scrutiny, Canon 4 of Eagleton’s Code of Judicial Conduct must be
justified by a compelling governmental interest, be narrowly tailored to achieve that interest, and
it must be the least restrictive means for achieving that interest. To satisfy “closely drawn”
scrutiny as laid out in Buckley, Canon 4 need only be justified by a “sufficiently important”
interest and be “closely drawn” to satisfy the interest. Buckley, 424 U.S. at 25, 96 S. Ct. at 638,
46 L. Ed. 2d 659 (1976) (“Even a “ ‘significant interference’ with protected rights of political
association” may be sustained if the State demonstrates a sufficiently important interest and
employs means closely drawn to avoid unnecessary abridgment of associational freedoms.”)
(emphasis added). Explaining whether preventing corruption in the election process is sufficiently important, the Court in Nat'l Right to Work Comm. stated:
[I]n Buckley v. Valeo, we specifically affirmed the importance of preventing both the
actual corruption threatened by large financial contributions and the eroding of public
confidence in the electoral process through the appearance of corruption. These interests
directly implicate “the integrity of our electoral process, and, not less, the responsibility
of the individual citizen for the successful functioning of that process.”
Fed. Election Comm'n v. Nat'l Right to Work Comm., 459 U.S. at 208, 103 S. Ct. at 560, 74 L.
Ed. 2d 364 (citations omitted).
In addition to serving a ‘sufficiently important interest,’ Canon 4 of Eagleton’s Code of
Judicial Conduct serves a compelling interest by preventing the erosion of public confidence in
the electoral process through actual or apparent corruption. Because a “compelling interest” is a
more exacting standard than the “sufficiently important” standard as laid out in Buckley, Canon
4 satisfies the “interest” prongs of both strict and “closely drawn” scrutiny.
17 A. Maintaining actual judicial impartiality for or against a party is a compelling
interest, and as such is also sufficiently important
Actual impartiality of the judiciary is a Constitutional necessity, required for the
fulfillment of the Due Process clause of the 14th Amendment. See eg. Caperton v. A.T. Massey
Coal Co., 556 U.S. 868, 129 S.Ct. 2252, 2259, 173 L.Ed.2d 1208 (2009) (“It is axiomatic that a
fair trial in a fair tribunal is a basic requirement of due process.”) (internal quotation marks and
citation omitted). Recognizing the necessity of both apparent and actual impartiality by judges
and judicial candidates, Canon 4 was enacted to prohibit “political or campaign activity that is
inconsistent with the independence, integrity, or impartiality of the judiciary.” (R. 9).
The Court in White I identified three definitions of “impartiality” that could be deemed
compelling state interests: impartiality as a lack of bias for or against a party, impartiality as a
lack of preconception in favor of a particular legal view, and impartiality as “open-mindedness”.
See White I, 536 U.S. at 775-8, 122 S. Ct. at 2535, 153 L. Ed. 2d 694. Canon 4 fosters the first
kind of impartiality as laid out by Justice Scalia—it ensures impartiality as lack of bias for or
against a party:
Impartiality in this sense assures equal application of the law. That is, it guarantees a
party that the judge who hears his case will apply the law to him in the same way he
applies it to any other party. This is the traditional sense in which the term is used.
Id. at 775-76, 122 S. Ct. at 2535, 153 L. Ed. 2d 694. Canon 4 says nothing about a judge or
judicial candidate’s ability to express political views, and does not seek to remedy impartiality as
a bias towards a legal view or an absence of “open-mindedness.” (R. 9-10). The anti-corruption
rationale underlying Canon 4 is intended to prevent bias for or against a party, as all contribution
limitations do; these are distinct from “announce” or “commit” clauses, which seek to prevent
bias towards legal views or “closed-mindedness,” which are not at issue here. This impartiality
as a lack of bias for or against a party is a compelling state interest. See Siefert, 608 F.3d at 981
18 (“Insofar as impartiality refers to ‘the lack of bias for or against either party to the proceeding,’ it
is a compelling state interest.”) (quoting White I, 536 U.S. at 775, 122 S.Ct. 2528) (emphasis in
original). “Judicial integrity is, in consequence, a state interest of the highest order.” White I,
536 U.S. at 793, 122 S. Ct. at 2544, 153 L. Ed. 2d 694 (2002) (Justice Kennedy, concurring). It
is an “interest of the highest order” to the state of Eagleton to ensure that every person that goes
before one of its elected judges receives his or her constitutionally guaranteed right to stand
before a judge without bias.
As such, maintaining actual and apparent judicial impartiality for or against a party is a
compelling interest, and as such is also sufficiently important, and therefore satisfies the lesser
(and in this case appropriate, see Section I, supra) level of “closely drawn” scrutiny prescribed in
Buckley.
B. Maintaining apparent judicial impartiality for or against a party is a compelling
interest, and as such is also sufficiently important
Canon 4 of the Judicial Code of Conduct seeks to preserve public confidence in the
independence and integrity of the judiciary of Eagleton, which “is eroded if judges or judicial
candidates are perceived to be partial.” (R. 10). The need of the judiciary to maintain a
reputation of impartiality is not a fanciful one; public confidence in the judiciary is integral to
preserving our justice system. See Wersal v. Sexton, 674 F.3d 1010, 1022-23 (8th Cir. 2012)
cert. denied, 133 S. Ct. 209, 184 L. Ed. 2d 40 (U.S. 2012); see also Mistretta v. United States,
488 U.S. 361, 407, 109 S. Ct. 647, 673, 102 L. Ed. 2d 714 (1989) (“The legitimacy of the
Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship.”); In re
Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942 (1955) (“[T]o perform its high
function in the best way ‘justice must satisfy the appearance of justice.’ ”) (quoting Offutt v.
United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13, 99 L. Ed. 11 (1954)).
19 III.
CANON 4 IS NARROWLY TAILORED, AND THUS IS ALSO CLOSELY
DRAWN
If a statute restricts more speech than is necessary to achieve the specific interest of the
statute, it is impermissibly overinclusive. “We are quick to add that there is nothing wrong in
general with a rule's being overinclusive. Overinclusiveness is the standard method of plugging
loopholes.” Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224, 229 (7th Cir. 1993). On the
other hand, a statute must also “not leave significant influences bearing on the interest
unregulated,” or in other words, must not be impermissibly underinclusive. However, in trying
to draw a line that is neither overinclusive nor underinclusive, legislatures are bound to err in
both directions. As the 8th Circuit stated:
Every place where the line is drawn is arguably either overinclusive, because too much
activism is restricted, or underinclusive, because too much threat to judicial openmindedness is tolerated. The courts then occupy the enviable position of not being
required to say in advance what line would be permissible, but of being privileged to veto
every possible legislative attempt to draw the line because it would have been possible to
draw the line somewhere else. If strict scrutiny is simply a way to strike down laws, in
which any law is doomed as soon as we invoke strict scrutiny, it is a charade. That is not
how the Supreme Court has applied strict scrutiny, nor should we adopt this flawed
methodology in our Circuit. Instead, where the states or other branches draw the line in a
place which the governmental actor can defend, with convincing evidence, as the place
where the threat to its interest becomes the most acute, the measure should pass strict
scrutiny, though it might have been possible for another hypothetical decisionmaker (sic)
to have moved the line an inch in one direction or another.
Republican Party of Minnesota v. White, 416 F.3d 738, 786 (8th Cir. 2005) (White II). Canon 4
is neither impermissibly overinclusive nor underinclusive, satisfies these requirements of narrow
tailoring, and as such also satisfies the less rigorous requirements of “closely drawn” tailoring.
Lastly, that a statute “could be replaced by no other regulation that could advance the
interest as well with less infringement of speech” means that the statute must be the least
restrictive means of advancing judicial impartiality as bias for or against a particular party.
Canon 4 of the Judicial Code of Conduct is the least restrictive means of accomplishing the goal
20 of maintaining actual and apparent impartiality by the judiciary of Eagleton, and recusal is not a
sufficient alternative in accomplishing the same end. For these reasons, Canon 4 passes the
“narrowly tailored” requirement of strict scrutiny.
A. Canon 4 actually advances Eagleton’s interest in an impartial judiciary by
preventing the most insidious opportunities for actual or apparent bias to occur
The influence of financial contributions is perceived by the masses (and even judges
themselves) to be quite great. Public polls in 2005 and 2006 found that 70 percent of the public
think raising money for their elections affects judges’ rulings to a moderate or great extent.
Kathleen Hall Jamieson and Michael Hennessy, Public Understanding and Support for the
Courts: Survey Results, 95 Geo. L.J. 899, 901 (2007). According to a 2002 written survey, 48
percent of state supreme court judges believe that campaign contributions to judges have “a great
deal” or “some” influence on judges’ decisions. Greenberg Quinlan Rosner Research &
American Viewpoint, Justice At Stake State Judges Frequency Questionnaire, Q.12 at 5 (2002).
Perceiving that campaign contributions have “a great deal” or “some” influence on judges’
decisions means that potential future parties (e.g. everyone) a judicial candidate solicits may feel
pressured to make a good impression on that candidate. The choice to contribute, and how
much, could result in a biased judge in the future if the candidate wins. Canon 4’s prohibition
against personal solicitations of groups smaller than twenty furthers Eagleton’s interest in
preventing the appearance and reality of corruption, bribery, and abuse of office by preventing
these situations from arising. As the Oregon Supreme Court observed:
The stake of the public in a judiciary that is both honest in fact and honest in appearance
is profound . . . A judge’s direct request for campaign contributions offers a quid pro quo
or, at least, can be perceived by the public to do so. Insulating the judge from such direct
solicitation eliminates the appearance (at least) of impropriety and, to that extent,
preserves the judiciary’s reputation for integrity.
21 In re Fadeley, 802 P.2d 31, 40 (Or. 1990) (upholding prohibition on personal solicitation of
funds). It is precisely the quid pro quo mentioned in Fadeley that Eagleton enacted Canon 4 to
prevent. The purpose of the solicitation clause is to minimize the opportunity for judges to form
biases towards contributors, and for contributors (and others) to perceive judges as forming
biases; donating on a website or turning down a campaign manager is not the same as looking a
judicial candidate in the eye and turning down her request for a campaign contribution. See
Siefert v. Alexander, 608 F.3d at 989 (“A contribution given directly to a judge, in response to a
judge's personal solicitation of that contribution, carries with it both a greater potential for a quid
pro quo and a greater appearance of a quid pro quo than a contribution given to the judge's
campaign committee at the request of someone other than the judge, or in response to a mass
mailing sent above the judge's signature.”). McConnell v. Fed. Election Comm’n held that for
specific bans like this that sever “the most direct link” to the potentially problematic contributor,
“the ban is closely drawn to prevent the corruption or the appearance of corruption of federal
candidates and officeholders.” McConnell v. Fed. Election Comm'n, 540 U.S. 93, 100-01, 124
S. Ct. 619, 632, 157 L. Ed. 2d 491 (2003) overruled by Citizens United v. Fed. Election Comm'n
(on other grounds), 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010) (holding that the
solicitation restrictions were valid anti-circumvention measures).
Canon 4 thus actually
advances Eagleton’s interest in maintaining judicial impartiality by disallowing the most
insidious and problematic interactions to occur—those that involve a judicial candidate directly
asking for or receiving campaign contributions.
B. Prohibiting solicitations to groups of less than twenty is neither impermissibly
overinclusive nor underinclusive
Canon 4 of the Eagleton Code of Judicial Conduct is not overinclusive. Canon 4 allows
22 for direct solicitation by candidates through “blanket solicitation letters” or mass mailings, and in
person to groups, so long as the audience contains twenty or more individuals. (R. 9). In White
II, the Appellants challenged only the fact that they could not solicit contributions from large
groups and could not, through their campaign committees, transmit solicitation messages above
their personal signatures. White II, 416 F.3d at 764-65. The court there found the solicitation
clause unconstitutional because it was overinclusive and regulated too much speech—
specifically, it did not allow for any exceptions to the direct solicitation clause ban. This is
different from the solicitation clause at bar. As noted in Wersal:
Namely, unlike the challenged portions in White II, direct personal solicitation creates a
situation where potential contributors must choose to either contribute to the candidate, or
decline to contribute, with a resulting risk of retribution. See In re Dunleavy, 838 A.2d
338, 351 (Me. 2003) (“If a contribution is made, a judge might subsequently be accused
of favoring the contributor in court. If a contribution is declined, a judge might be
accused of punishing a contributor in court.”). In either scenario, the candidate is more
likely to decipher whether the potential donor chooses to make a contribution, which
gives rise to a greater risk of a quid pro quo.
Wersal at 1029 (8th Cir. 2012) (citations omitted) (citing Br. of Former Governor & Chief
Justices as Amici Curiae 3 (“[T]here is no way to have meaningful campaign solicitations where
a candidate can freely solicit contributions in one-on-one meetings with prospective donors
without a substantial likelihood of learning, at least in many instances, the outcome of the ‘ask.’
”)). Blatherton was allowed, under Canon 4, to solicit contributions from large groups (greater
than twenty), and was also allowed to send out mass mailings.
The only type of direct
solicitation Canon 4 does not allow is between a candidate and an individual or small group of
individuals. (R. 9).
Furthermore, Blatherton was not fined for attending the EFE fundraiser, or for speaking
to only fifteen people about her views, or for making a general solicitation for campaign funds.
She was fined for doing something very specifically prohibited: directly requesting campaign
23 contributions from a group of less than twenty individuals1, as explicitly prohibited by Canon 4.
(R. 9). In arguing that the solicitation clause is a violation of her First Amendment right,
Blatherton concedes that she did indeed solicit, and plans to solicit again, so we do not have to
consider the particular language she used in her solicitation.
Moreover, Canon 4 says nothing about a judge or judicial candidate’s ability to express
political views, and does not seek to remedy impartiality as a bias towards a legal view or an
absence of “open-mindedness.” (R. 9-10). Canon 4 (A) expressly seeks to prevent judges and
judicial candidates from directly requesting or receiving campaign contributions from groups of
fewer than twenty people. (R. 9). The rule was crafted this way to avoid the coercive effect on a
potential contributor being asked directly by a judicial candidate for a campaign contribution.
This is why Canon 4 allows for blanket solicitation letters and solicitation in groups of twenty or
greater where a judge cannot gauge an individual reaction to the request as closely, but does not
allow for smaller, more intimate requests for contributions in which a donor might perceive his
or her response as resulting in a future bias from the judge.
Here, Blatheron spoke to fifteen people, five people short of the twenty-person floor
required. It is not the court’s place to redraw such lines—if the legislature decides that twenty
people is the minimum required for a judicial candidate to solicit directly, then that number is
just as good as fifteen, or twelve, or fifty, so long as it is reasonable. See McConnell, 540 U.S. at
208, 124 S. Ct. at 697 (2003) (“One might just as well argue that the electioneering
communication definition is underinclusive because it leaves advertising 61 days in advance of
an election entirely unregulated.
The record amply justifies Congress’ line-drawing.”)
1
The Eagleton Board of Judicial Conduct found that despite the live video stream that reached a
group of larger than twenty individuals, Blatherton’s in-person solicitation from the fifteen
individuals created actual and, at the very least, an appearance of partiality. (R. 11). 24 (upholding regulation of electioneering communications within 60 days of an election); Burson
v. Freeman, 504 U.S. 191, 112 S. Ct. 1846, 119 L. Ed. 2d 5 (1992) (restriction on picketing
within 100 feet of polling places upheld on strict scrutiny review). The state of Eagleton had to
draw the line somewhere, and they drew it at twenty. Blatherton knew the line was at twenty,
and if she was unsure if enough people were present for her to solicit directly, she should have
abstained from asking for contributions. Someone else present could have spoken after her and
solicited for her campaign, or she could have had people sign up with their phone numbers, and
her campaign staff could have called later and requested donations, etc. Any of these actions
would have mitigated the appearance of a potential quid pro quo situation arising in the future,
and as such the clause is not overinclusive.
The District Court claims that the solicitation clause is overinclusive because a direct
solicitation of just one dollar from an individual would result in a sanction under Canon 4.
However, it is actual and apparent impartiality that Eagleton is trying to ensure, so while a
contribution of only a dollar may not in fact create bias towards a party, to others it may still
certainly create the potential for an appearance of bias. Appearance of impartiality is just as
important for the judiciary as actual impartiality. See Section II-A, supra. Canon 4 is tailored
only to prevent only the most harmful of campaign solicitations—ones that are directed
personally by the candidate to a small number of individuals, and while it may reach to cases
where actual impartiality is not an issue, in those cases it is preventing the appearance of bias,
which is equally important. Therefore, Canon 4 is not overinclusive.
Nor is the solicitation clause in Canon 4 underinclusive. Underinclusiveness of a statute
raises “serious doubts” about whether the statute actually serves the state’s purported interest.
Fla. Star v. B.J.F., 491 U.S. 524, 540, 109 S. Ct. 2603, 2612, 105 L. Ed. 2d 443 (1989).
25 However, in this case, those serious doubts have been answered. While the Canon is admittedly
does not result in complete impartiality, it hews closely with the anticorruption rationale that
justifies it. Siefert, 608 F.3d at 989-90. As stated in McConnell, “reform may take one step at a
time, addressing itself to the phase of the problem which seems most acute to the legislative
mind.” McConnell, 540 U.S. at 207-08, 124 S.Ct. 619, quoting Buckley (rejecting the argument
that the restriction on expenditures for electioneering communications was underinclusive
because it did not include print or internet ads). The question is not: does Canon 4 prohibit all
attacks on actual and apparent impartiality by judges? The proper question is: does Canon 4
include those most notably at risk of entering into an apparent or actual quid pro quo relationship
regarding judicial campaign contributions? Canon 4 does not prohibit every activity that could
lead to a candidate discovering who contributed to her campaign—it does not stop, for example
individual contributors from directly approaching candidates and telling them how much they
contributed, or prevent judicial candidates for looking online to see who contributed. However,
neither checking the contribution website nor having contributors directly disclose to candidates
how much they contributed creates the same tension and expectation as described above. Thus a
restriction on this kind of speech would not serve any compelling or even sufficiently important
interest. As for candidates thanking contributors, it is hard to determine why this kind of
expressed gratitude (without any further promise, commitment, or pledge on the part of the
candidate) would create actual or apparent quid pro quo.
Because prohibiting campaign contributions would not result in a benefit worth the
cost—i.e. essentially only allowing wealthy individuals who could afford to pay for their own
campaigns to run for judicial election—the only alternative is to offer a less restrictive measure
that focuses specifically on the most likely scenarios to create actual or apparent bias for or
26 against a party. That is the solicitation clause in Canon 4.
C. Canon 4 could be replaced by no other regulation that could advance the interest
as well with less infringement of speech
The solicitation clause in Canon 4 is the least restrictive means of preventing actual and
apparent quid pro quo between judicial candidates and contributors, and recusal is not a
sufficient alternative. Judicial-recusal rules are self-enforced and therefore may not provide
adequate safeguards against the risks that flow from treating judicial elections like legislative
ones. Carey, 614 F.3d at 194. Even when a judge does not have any direct, personal, substantial,
pecuniary interest in a case, the like of which would require his or her disqualification at
common law, there are circumstances in which the probability of actual bias on the part of judge
is “too high to be constitutionally tolerable.” See Caperton, 556 U.S. at 876-7, 129 S. Ct. at
2259-60, 173 L. Ed. 2d 1208. Because recusal will not always apply to judges who will have an
actual or apparent bias for or against a party before them, the only way to ensure the continued
appearance of impartiality by the judiciary is to allow for campaign contribution limits like the
solicitation clause in Canon 4.
Whether a litigant's campaign contributions were a necessary and sufficient cause of a
judge's victory in a judicial election is not the proper inquiry in deciding whether such
contributions require a judge's recusal as matter of due process; due process requires an objective
inquiry into whether the contributor's influence on the election would possibly tempt the average
judge to lead her not to hold the balance “nice, clear and true.” Id. at 885-6, 129 S. Ct. at 2264-5,
173 L. Ed. 2d 1208. Due process requires that we evaluate whether a judge will be tempted to
stray from the impartiality that is required before a litigant is in front of that judge—recusal is
too little, too late to prevent the appearance of bias for or against a potential party.
27 Further, motions to disqualify a judge on grounds of campaign contributions “hardly ever
succeed.” John Copeland Nagle, The Recusal Alternative to Campaign Finance Legislation, 37
Harv. J. on Legis. 69, 87 (2000). The “idea that recusal will protect the interest of individual
litigants and the public from partiality openly declared in the course of a political campaign
would fail rather spectacularly.” Randall T. Shepard, Campaign Speech: Restraint and Liberty in
Judicial Ethics, 9 Geo. J. Legal Ethics 1059, 1079 (1996). To be sure, a plain goal of the federal
disqualification statute is to promote public confidence in the judicial system by avoiding even
the appearance of partiality. Id. at 1080. However, even a casual perusal of the cases decided
under the federal statute demonstrates that only the very most outrageous behavior is sufficient to
win a recusal. Id. For example, a judge who called a citizen's lawyer a “son-of-a-bitch” and a
“wise-ass lawyer” was not required to disqualify himself. Id.
When a judicial candidate engages in personal solicitation, the damage is done
immediately and is not cured simply by virtue of the judge later recusing himself from a case
involving the contributor. Any other means of protecting the image of judicial impartiality
would be a greater infringement on the rights of judicial candidates, or, as in the case of recusal,
be significantly less effective at reducing the harm Canon 4 aims to protect against. Canon 4 is
enacted with a compelling purpose that is narrowly tailored to serve that end, and no less
restrictive means of accomplishing that end are available. Therefore Canon 4 survives strict, and
the less rigorous “closely drawn” scrutiny, and as such is Constitutional.
IV.
CANON 4 ALSO MEETS ‘CLOSELY DRAWN’ SCRUTINY
INDEPENDENTLY OF THE STRICT SCRUTINY ANALYSIS
In addition to meeting the more rigorous standard of “narrowly tailoring,” Canon 4 also
satisfies the “closely drawn” requirement of Buckley. The Court in Nixon v. Shrink Missouri
Gov't PAC explained another way of understanding the test:
28 In Buckley, we specifically rejected the contention that $1,000, or any other amount, was
a constitutional minimum below which legislatures could not regulate. As indicated
above, we referred instead to the outer limits of contribution regulation by asking whether
there was any showing that the limits were so low as to impede the ability of candidates
to “amas[s] the resources necessary for effective advocacy,” 424 U.S., at 21, 96 S.Ct.
612. We asked, in other words, whether the contribution limitation was so radical in
effect as to render political association ineffective, drive the sound of a candidate's voice
below the level of notice, and render contributions pointless.
Nixon, 528 U.S. at 397, 120 S. Ct. at 909, 145 L. Ed. 2d 886. Canon 4 also survives under this
understanding of “closely drawn” scrutiny, as it does none of the three things that the Court was
concerned with in Buckley.
Although the elections in Eagleton are nonpartisan, Canon 4 says nothing about limiting a
candidate’s right to associate with political parties. Therefore the solicitation clause does not
affect political association in the slightest way. Limiting the direct solicitation of individuals and
the receipt of campaign contributions to a candidate’s campaign committee does not “drive the
sound of candidate’s voice below the level of notice;” a candidate is free, as Blatherton did, to
speak on all permissible topics. (R. 8). The only thing Blatheron could not do under Canon 4
was request campaign contributions from a group of fifteen people—the rest of her speech was
entirely allowed. Further, because the solicitation clause does not affect contribution ceilings,
only which people are allowed to directly solicit funds, Canon 4 does not render contributions
pointless—judicial candidates can still receive funds and spend them as they see fit.
Under the test enunciated in Nixon, the personal solicitation clause in Canon 4 is “closely
drawn” and, as such, survives the scrutiny laid out in Buckley.
CONCLUSION
Canon 4 of Eagleton’s Code of Judicial Conduct regulates campaign finance mechanics.
It does not infringe on protected political speech, and as such, is subject to “closely drawn”
scrutiny as laid out in Buckley. Eagleton’s personal solicitation clause of Canon 4 serves a
29 compelling state interest by ensuring and maintaining public confidence in the impartiality and
independence of the judiciary, and preventing corruption. It satisfies both the “closely drawn”
rationale, and is narrowly tailored to maintain impartiality as a lack of bias in the judiciary of
Eagleton. As such, Canon 4 is Constitutional and should be upheld, and the Circuit Court’s
opinion should be affirmed, with summary judgment granted for the Respondents.
30