As the Supreme Court prepares to hear argument on the challenged ban on personal fundraising by judicial candidates, writers arguing for the preservation of this prohibition continue to make their case. Kate Berry of the Brennan Center replies to a posting here and disagrees with the proposition that it is hard to see a major benefit from a restriction on speech described as “modest.” Garrett Epps shares her position that the prohibition should be upheld. In each case, the writers maintain that if we have to have judicial elections, they should be subject to special rules to safeguard public confidence in an independent judiciary and that this is one such rule.

What is offered in support of this position?

Epps argues in general terms, appealing to the intuition that “there is a difference between being asked by an employee to give money, and being asked by the judge himself.” If we repair to public opinion as the standard for judging the significance of the difference, there is good reason to question Epps’ assertion. Does public confidence truly rest on a work-around—the judicial candidate instructing someone else to ask for money on her behalf, rather than making the request herself? The judge approves the solicitation, picks the person to make it, knows who gives and who does not, and may thank the contributor. One former judicial candidate tells The New York Times that it is a “farce” and a “game”. But in Epps’ view, barring a direct candidate solicitation will help shore up public confidence in the judiciary, or keep it from being further eroded, and “preserve some of the independence the federal judiciary guards for itself”.

Ms. Berry cites a poll to suggest that, by a healthy margin, the public is indeed moved by the difference noted by Epps.  But it turns out that, on the relevant issue, this is a one question poll, the wording of which is this:

In some states, candidates running for judge can personally ask for contributions by mail or email, over the phone, or face to face. In other states, candidates running for judge create a committee, and only the committee can ask for contributions, not the candidate themselves [sic].

 How would it impact your confidence in courts if candidates for judge could ask for contributions personally, instead of having to rely on a committee?

The one question does not define, explore or explain what the respondents are to understand by the difference between a judge who creates a committee on whom she must “rely” for fundraising and a judge who personally asks for money. Would the result be the same if this difference—which some argue is no or barely any difference at all—were clarified? The issue being explored is the significance of the ban in maintaining public confidence and judicial integrity, and yet how much the public would care about the ban on solicitation would appear to depend on whether the prohibition is perceived to be consequential or a masquerade. This one question does not inform the respondents sufficiently to lend much meaning to the result.

This lack of information and context weakens the force of this poll for the additional reason that respondents bring their own background assumptions to questions about judicial campaign activity. An earlier Brennan Center poll, using more questions, shows that they dislike fundraising for these campaigns, period, and by wide margin, and they don’t distinguish between contributions or independent expenditures. None of it sits well with them. Of course, then, the public has strong objections to solicitations by judicial candidates. But would it conclude, when provided with all relevant information, that anything of value has been accomplished by a solicitation ban that leaves the candidate free to appoint and instruct people to do the work for him, and to keep tabs on who gave and who did not—thanking the givers and letting the ones who decline fret about the possible consequences?

It is striking that while over the years campaign finance reform debate has centered on the conception of “circumvention”–doing in round-about fashion what is directly prohibited—the solicitation rule before the Court seemingly codifies a form of circumvention in the name of protecting public confidence in the judiciary. A speech restriction justified on this basis is a curious reform measure. The claim made for its contribution to public confidence seems wishful, not made less so by the very limited and not especially persuasive polling data that has been offered to back it up.

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