Thursday, February 10, 2011

Circuit Split Watch: Knock, Knock. Who's There? A Judge.

This article first appeared in the February 9, 2011, issue of the National Law Journal's Supreme Court Insider.

Under the First Amendment, can states prohibit judicial candidates from personally soliciting campaign contributions?

Last summer, the U.S. Court of Appeals for the 7th Circuit said yes (twice), upholding Indiana and Wisconsin rules. The 6th and 8th Circuits said no, invalidating Kentucky and Minnesota rules, albeit with different results. Two of these cases have already caught the Supreme Court’s attention.

The 8th Circuit decision allows a judicial candidate to “personally solicit funds . . . door-to-door and by making personal phone calls.” In contrast, the 6th Circuit, by its own account, was not ruling on “a narrowly tailored solicitation clause—say, one focused on one-on-one solicitations.” Rather, its concern was with Kentucky’s rule squelching less direct fundraising via candidate “speeches to large groups and signed mass mailings.”

The 7th and 8th Circuit cases are on appeal. Kentucky did not appeal, but the 6th Circuit case remains pending in federal district court following remand—not on solicitation, but another issue. Each of the circuit cases addressed other judicial candidate rules, along with solicitation.

The Supreme Court has already shown initial interest in the 7th Circuit cases. When Indiana and Wisconsin waived their opportunity to oppose petitions filed, the Court requested responses. While “Response Requested” does not equal “Petition Granted,” it does mean that a petition has at least survived weeding level one, where thousands of others are rejected.

Although the Court is scheduled to consider both 7th Circuit petitions in its February 18th conference, at least one will be relisted for a later date. Just this week, the Court extended Wisconsin’s response deadline to April 1st. Indiana has already filed its response, but postponing conference for both cases seems likely, since the Court synchronized them before.

The Court’s initial interest is not surprising. Less than two years ago, in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009), the Court required an elected state judge to recuse from a case involving a company led by his top campaign contributor. In doing so, the Court said that conduct rules “safeguard against judicial campaign abuses that threaten to imperil public confidence in the fairness and integrity of the nation’s elected judges” (internal quotation marks omitted). Maintaining this confidence and integrity “is a vital state interest.”

On the other hand, the Court has stepped in to limit judicial campaign rules that stymie free expression. Republican Party of Minnesota v. White, 536 U.S. 765 (2002), held that a state rule preventing judicial candidates “from announcing their views on disputed legal and political issues violates the First Amendment.” If a candidate’s mind were “a complete tabula rasa” that would show “lack of qualification, not lack of bias” (internal quotation marks omitted).

The Court may also be interested in the 7th Circuit’s standard of review, which could itself create a circuit split. The petitions argue that the 7th Circuit broke from other circuits and the Supreme Court in White, by employing a standard weaker than strict scrutiny.

Before acting on the 7th Circuit petitions, the Supreme Court may decide to wait for the 8th Circuit’s conflicting and controversial “door-to-door” case to run its course. After extensive intracircuit criticism, including an amici curiae brief supporting rehearing en banc from five attorneys general of 8th Circuit states, and a press release from the Arkansas Supreme Court supporting that brief, the 8th Circuit granted rehearing en banc. The court held argument in January and a decision is pending.

If the Supreme Court decides not to review solicitation or other judicial campaign rules now, look for sequels. James Bopp, who successfully argued for the plaintiff in White, and filed an amicus brief on the losing side of Caperton, also represents the plaintiffs in the 6th, 7th, and 8th Circuit cases. Gregory Wersal, the 8th Circuit plaintiff, was also the plaintiff in White (decided nearly a decade ago).