Stop Restricting Speech and Educate the Public: A Review of the ABA's Proposed Campaign Activity Canon of the Model Code of Judicial Conduct

INTRODUCTION Imagine a candidate in an election for county judge. As part of his campaign, the candidate decides to attend local events to which he has been invited. The candidate attends both Republican and Democratic events in the neighborhood. In addition, his daughter makes appearances and speeches on his behalf at other local events sponsored by both political parties. For some reason, the sponsors do not invite his opponent, but the candidate still attends to further his campaign because he would like to win the election. The candidate wins the election, but ethical charges are filed against him. Apparently, attending campaign events while running for election is a violation of the state's Code of Judicial Conduct if the events are political. As a consequence, the judge receives a public reprimand for taking steps that would aid him in his campaign. The previous scenario occurred in Florida during the 2002 election, and the Florida Supreme Court upheld the Judicial Qualifications Commission's recommendation for a public reprimand.1 The judge was sanctioned for doing what the election required - explaining to the public why it should vote him into office. That information usually includes the candidate's position on current issues and promises for the future. Without this information, the public is left to choose candidates based on nothing but "personal appearances. "2 However, a problem seems to arise when the sought-after office is that of a judge. Although all federal judges are appointed, judicial elections are a popular way of selecting state judges, with thirty states choosing this method over an appointment or merit selection system.3 Differing from other officials, judges "are expected to refrain from catering to particular constituencies" and are expected to be "independent" and "impartial. "4 A judicial candidate who gives his position on current issues may threaten "this appearance of impartiality. "5 Trying to tend to the problem between informing voters and maintaining impartiality, the American Bar Association (AB A) created a code to restrict campaign speech and behavior.6 The 1924 Canons of Judicial Ethics lasted almost fifty years, but in 1972, the ABA made changes to the rules and adopted the Model Code of Judicial Conduct.7 The ABA subsequently revised the Code in 1990. Since 1972, almost every state has adopted a variation of the Code.8 The state codes include sanctions for candidates who violate the provisions. Some of the various violations of which candidates have been accused seem trivial, but others are quite serious.9 The current codes, in the states and the Model Code, usually have five or seven canons. In the Model Code, Canon 5 pertains to judicial campaign activities, with the first clause being the "political activity" clause, which regulates candidate conduct in and for political organizations.10 The subsequent clauses are similar and regulate a candidate's speech. They are the "pledges or promises" clause and the "commit" clause, and they apply to statements the candidate is not allowed to make while campaigning.11 The 1972 Code contained an "announce" clause, which also applied to campaign speech.12 This clause, however, was later found to be unconstitutional by the U.S. Supreme Court and has since been removed from the modern version of the Code.13 Today's codes also contain a "misrepresent" clause. This clause prohibits candidates from misrepresenting information regarding either themselves or their opponents.14 The last significant provision is the "solicitation" clause, which controls a candidate's fundraising and solicitation.15 Although the Code was meant to "alleviate the tensions between the judge's role and the reality of political campaigns," some courts have started to view the restrictions "with increasing skepticism. "16 The most influential decision was the Supreme Court's ruling in Republican Party of Minnesota v. White ("White F), which declared that Minnesota's announce clause violated the First Amendment. …