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Recent discussions of judicial election campaigns have been marked by two themes: (i) the growing costs of such campaigns, with concerns over the roles of large contributions and independent spending, the burden of fundraising for candidates, and the implications of campaign finance practices for judicial decision-making; and (ii) the changing nature of campaigning, as elections that were once “low-key affairs, conducted with civility and dignity,” have become increasingly politicized, marked by heated charges and sharp criticisms of the records and decisions of sitting judges. The two developments are surely intertwined, with the more bitter and hard-fought campaigns funded by rapidly growing campaign coffers, and the surge in campaign money, in turn, stimulated by more heated ads and greater attention to hot button issues. Sharply rising costs and more intensive and even ideological campaigning together mark an increased recognition of the significant policy-making role state courts play — a backhanded tribute to the power and discretion of state judges and to the high political stakes in many state judicial elections. Yet the combination of evolving campaign finance practices and more politicized campaigning may call into question the fairness of judicial decision-making and public confidence in the impartiality of the courts.

The changing nature of judicial campaigns is reflected in, and has been bolstered by, recent federal and state court decisions subjecting traditional state judicial campaign codes to First Amendment scrutiny. Several courts have held that code provisions that preclude candidates from “announc[ing]” their “views on disputed legal or political issues” infringe on the free speech rights of campaign participants and on the interest of voters in receiving information relevant to the election. These courts either have held such content restrictions invalid or have sustained them by interpreting the restrictions narrowly to preclude a candidate only from making known her positions on issues “likely to come before” her as a judge. Judge Posner has suggested that even the “likely to come before” standard is overbroad, and that only a prohibition on pledges or promises to rule a certain way would pass constitutional muster.


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