The real goal of the new financing scheme isn’t as lofty as the Commission contends. Instead, we are witnessing the opening salvo in a crusade to publicly fund federal and state elections for all three branches of government.
There may be good arguments for merit selection of judges followed by periodic, unopposed retention elections. But contested elections raise serious questions. They’ve become inordinately expensive, create a perception of impropriety, and may produce judges beholden to deep‐pocketed donors with recurring business before the court. While politicians are expected to fight for their constituents, judges are supposed to have an allegiance to the rule of law, not to individual or corporate interests. Still, voters in many states have resisted attempts to replace judicial elections with executive appointments. That’s the problem the ABA Commission claims to address. Lamentably, the proposed cure is worse than the disease.
Public funding favors current office‐holders by denying to challengers the financial resources needed to overcome the advantages of incumbency. Public funding is opposed by taxpayers; just look at the small percentage who have opted to check off tax dollars for presidential campaigns. Ordinarily, public funding is tied to prior vote counts or fundraising, thereby penalizing new candidates. Without those ties, however, public funding diverts resources to fringe candidates. The Commission blithely wishes away that problem by asserting that only “serious” candidates will receive money. Yet our experience with presidential elections isn’t encouraging. Big bucks have fattened the campaign coffers of luminaries like ultra‐leftist Lenora Fulani and convicted felon Lyndon LaRouche.
Naturally, there’s the issue of cost, about which the Commission professes no insight and offers no solution. And finally, of paramount importance, there’s the moral and constitutional concern over coerced speech. “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors,” said Thomas Jefferson, “is sinful and tyrannical.” Yes it is. But coerced speech is what sustains publicly funded elections. When government tells us what we must say — abridging core rights guaranteed by the First Amendment — it must have a compelling interest in doing so, and it must adopt the least restrictive means available. To fund judicial elections with tax dollars satisfies neither criterion.
Presumably, the compelling state interest is the same for judges as for legislators — to avoid actual or apparent corruption. Then again, the community is much better protected from venal judges than from shady lawmakers. Judges deal with concrete cases in which the interests of the attorneys and the litigants are unmistakable, thus ripe for public scrutiny. Similarly, the judge’s link to the outcome of the case is unambiguous. Judges are usually subject to appellate review. Judges decide matters of law, not value‐laden policy questions. Judges must substantiate their legal conclusions by issuing a written opinion. And judges in all 50 states are governed by an ethical code, in writing, with prescribed remedies and enforcement procedures.
Among their ethical prohibitions, judges may not hear cases in which they have a personal bias toward a party or a financial interest in a party or in the subject matter. Moreover, the ABA Model Code of Judicial Conduct, adopted in substance by 47 states, permits fundraising only by “committees of responsible persons” acting on behalf of the nominee. Candidates may not directly solicit or accept campaign contributions. In August 1999, the ABA went considerably further. It modified the Model Code to command that judges disqualify themselves from any case in which a party or attorney has donated more than a specified amount (to be determined by each state). That anti‐corruption provision is buttressed by comprehensive disclosure obligations.
Unquestionably, the requirement that judges recuse themselves in appropriate cases is less restrictive medicine than compelled speech. Indeed, even the ABA’s disclosure mandate can be avoided if parties and attorneys simply declare under penalty of perjury that they have not violated established contribution limits. That way, both political coercion and influence peddling are minimized. At the same time, voters will be free to advance their particular judicial philosophies by contributing to the campaign of their choice.
Contested judicial elections may be a bad idea, but without free speech they are immeasurably worse.