According to the American Bar Association, the majority in the case of Williams-Yulee v. Florida Bar held that a state may issue such a ban without violating the First Amendment to the U.S. Constitution as a way to “assure … people that judges will apply the law without fear or favor – and without personally asked anyone for money.”
That ruling is a bit confusing in light of the Court’s 2010 decision in Citizens United v. Federal Election Commission which held, essentially, that corporations and unions cannot constitutionally be prohibited from promoting the election of one candidate over another candidate. The First Amendment protects the free speech of individuals and that protection seemingly extends to corporations and unions out to influence the political process by spending money on campaigns.
The ruling in Citizens United may not be precisely on point as that had more to do with the free speech of corporations and unions than with politicians directly asking for money, but the ruling is still relevant here. The trend has been to expand what lobbyists can do to get money to candidates and how people running for office get cash over the past few years. The notion that states can now take action to prevent judges from directly soliciting funds does buck that trend a bit.
One thing worth mentioning about campaign finance reform and Arkansas is that judges are pretty well treated like other candidates when it comes to raising money. Judges are different, however, in that they are nonpartisan – a decision the state made to hopefully cut down on the influence that political parties have over those positions.
Of course, judges have long been prohibited from taking actions such as talking about certain political issues and how they might rule on them. I well remember talking to a former Benton County circuit judge years ago about how tough it can be to run a campaign without being able to talk about a lot of substantive issues.
He said candidates wound up running commercials in which they made such noncontroversial claims as “enjoying fishing” or “being from northwest Arkansas” before asking the public to vote for them.
Restrictions on what issues judges can or cannot discuss and how they can raise money for campaigns actually makes a lot of sense. If the goal is to have truly neutral judges, then taking steps to make sure they appear nonpartisan is a great idea.
This column was authored by Ethan C. Nobles and originally appeared in the May 5, 2015, edition of the Daily Record in Little Rock.
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