Own-Campaign Exceptions

Rule 4.1(A) opens with a qualification, and every own-campaign permission in the Code starts there. The stem reads, “Except as permitted by law, or by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate shall not,” and only then does the list of forbidden activities begin.¹ The list is a baseline. Law outside the Code, together with three companion rules inside it, can take particular activity off the list.

The exceptions exist because the first three prohibitions would otherwise defeat any candidate’s own campaign. Paragraphs (A)(1) through (A)(3) keep the judicial office away from party organizations and away from other people’s races. A candidate must still tell voters who she is and ask for their support, and read literally, paragraph (A)(3) forbids that: it bars a judge or judicial candidate from publicly endorsing or opposing a candidate for any public office, and she is a candidate for public office.² A rule that silenced the one person who must explain why she deserves the seat would leave voters nothing to judge. The opening exceptions therefore separate a candidate’s effort to win her own office from the party service and outside endorsements that the core prohibitions target.

This reading does not reproduce the text of Rules 4.2, 4.3, and 4.4, so the subsections below teach the exceptions only as far as the sources reach. One move still carries the analysis. When a stem describes campaign activity, ask whose candidacy the activity serves. Activity for a party or for someone else’s race stays under the core prohibitions. Activity for the candidate’s own race may be permitted within the companion rules’ limits, and the remaining prohibitions in Rule 4.1(A) keep operating inside the campaign.

Speaking for Your Own Candidacy

Rule 4.1(A)(2) bars a judge or judicial candidate from making speeches “on behalf of a political organization,” and that phrase leaves a wide field of speech open.³ A candidate who describes her qualifications and her plans for the court advances no party, so the prohibition does not reach her words. The Supreme Court showed how wide the field is when it upheld Florida’s ban on personal requests for money. Candidates remained free, the Court said, to discuss any issue with any person at any time, to write letters, give speeches, and put up billboards, and to promote their campaigns on radio, television, and other media.⁴ That description comes from a case about one narrow restriction, so it shows how much speech a State can leave untouched while protecting its interest. It does not recite the Code’s permissions, which flow from the opening exceptions to Rule 4.1(A). For exam purposes, letters, speeches, billboards, personal contact, and broadcast and online media are open to a candidate speaking for her own election, subject to the limits later sections cover.

Two ideas support this freedom. The first concerns voters, who in an election judge candidates by what the candidates say. Republican Party of Minnesota v. White shows how much constitutional weight that idea carries. Gregory Wersal, running for the Minnesota Supreme Court, distributed literature criticizing several of that court’s decisions on crime, welfare, and abortion.⁵ The Court called debate on the qualifications of candidates “at the core of our electoral process and of the First Amendment freedoms,” and it said that treating the context of electioneering as a reason to abridge speech “sets our First Amendment jurisprudence on its head.”⁶ The First Amendment section later in this chapter treats that case and the solicitation case in full. For now, note that self-advocacy sits where the Constitution protects speech most strongly.

The second idea explains where the line falls. A speech for a party lends the judge’s standing to a faction and signals alignment with it. A candidate describing her own record lends that standing to no one else: she asks the whole electorate to judge her, so no party can claim a return on her words. The test therefore asks whose cause the words advance.

Exam Analysis Steps

Because one candidate, at one podium, can say permitted and forbidden things in the same appearance, the analysis works best when it runs on the words and not on the setting. The steps are these:

Identify whose cause each part of the speech advances: the speaker’s own election, a political organization’s program, or another person’s campaign.
Ask whether the speech carries a political organization’s platform, slate, or goals, because that makes it a speech on behalf of the organization under paragraph (A)(2).
Ask whether the speech urges voters to support or oppose someone else’s candidacy for any public office, which paragraph (A)(3) separately forbids.
Check the remaining campaign-speech rules, which still govern what a candidate may say about her own race and which later sections take up.

The title, the podium, and the audience stay the same from radio to rally, so none of them decides the answer. What changes is the cause the words serve. The letters, the billboards, the interview, and the opening minutes of the rally speech all ask voters to evaluate the candidate and hand the party nothing. The closing appeal spends the judicial title on a legislative slate, which is the lending of the judge’s voice that paragraph (A)(2) prevents. A stem that puts a judicial candidate at a party rally cannot be resolved by its venue, and a stem that calls the speaker a candidate cannot be resolved by that label. The answer comes from sorting the speaker’s sentences by the cause each one serves. Whether the candidate may attend or pay for such an event at all falls under other paragraphs of Rule 4.1(A), which the money-and-events section takes up.

The rally also shows why the opening exceptions matter. Read literally, paragraph (A)(3) would reach a candidate who asks voters to support her own election, since she is a candidate for public office.⁷ The own-campaign exceptions keep that appeal lawful, and they extend only to the speaker’s own race, never to anyone else’s.

Freedom to speak for oneself leaves other rules in force inside the campaign. In upholding Florida’s restriction, the Court observed that candidates “cannot say, ‘Please give me money,’” although they can direct their campaign committees to do so.⁸ A candidate’s own-campaign speech is therefore protected from the party-speech ban, yet it remains subject to the later rules on fundraising, truthfulness, promises, and pending cases. Those rules police how the candidate speaks about her own race. They play no part in deciding whether she may speak for it.

Pledges and promises, which a later section takes up, raise a concern that the White litigation illustrates from the nominee’s side. A footnote there recalls that the author of the Court’s opinion declined, at his own confirmation hearings, to tell the Senate whether he would overrule a particular case, saying it is “quite a thing to be arguing to somebody who you know has made a representation in the course of his confirmation hearings” that he will do this or that as a condition of being confirmed.⁹

Party Identification and Endorsements

Rule 4.1(A)(6) forbids a judge or judicial candidate to “publicly identify himself or herself as a candidate of a political organization,” and Rule 4.1(A)(7) forbids a judge or judicial candidate to “seek, accept, or use endorsements from a political organization.”¹² The earlier paragraphs keep the judge out of party offices, party speeches, and other people’s campaigns. These two govern what a campaign tells voters about the candidate’s own tie to a party. Identification is the candidate saying that a party’s name goes with hers, and an endorsement is the party saying that she goes with it. Each paragraph closes one door through which the same message could reach voters: that this candidate belongs to a side.

The wording of each paragraph does specific work. The word “publicly” in paragraph (A)(6) aims the rule at declarations made to the electorate, such as a flyer, an advertisement, or a stump speech.¹³ Paragraph (A)(7) uses three verbs because an endorsement can reach a campaign by three routes.¹⁴ To seek an endorsement is to ask for it, to accept one is to take it when the party offers it unrequested, and to use one is to display it in the campaign. A rule that barred only asking would be easy to evade, since a candidate could wait for the party to volunteer its support and then advertise it. The three verbs follow an endorsement from request to receipt to display, which is why a candidate’s silence about any request does not end the analysis.

The concern behind both rules is the party signal itself. A party label or party backing tells voters which side a candidate presumably favors before they learn anything about her qualifications, and a candidate who wins on a party’s support may seem to owe that party something. That is the appearance problem from the start of this chapter, reached by a different path. Paragraph (A)(3) forbids a judge to lend the judicial name to someone else’s campaign, and paragraphs (A)(6) and (A)(7) forbid the judge to borrow a party’s name for her own.¹⁵ Together they keep a nonpartisan election nonpartisan from both directions.

These rules matter most in a nonpartisan contest, where no party labels appear on the ballot and voters can learn of an alignment only from the candidate’s own statements or from the party’s announcement of its choice. The Code does not bind a party, which stays free to say whom it prefers. It reaches the candidate, who may not ask for that announcement, take it up, or put it in campaign materials. The two paragraphs also depend on each other. If paragraph (A)(6) stood alone, a candidate could avoid calling himself the party’s candidate while the party publicized its support, and voters would receive the same message. Paragraph (A)(7) closes that route.

The same flyer might be lawful in a different kind of state. Some states fill judgeships in partisan elections, where candidates appear on the ballot under party labels, and there the label is part of how the election works. The opening qualification of Rule 4.1(A), discussed at the start of this unit, lets law outside the Code permit what the lettered paragraphs would otherwise forbid, and a state’s election statutes and its own judicial conduct rules are where such a permission would appear. This reading does not reproduce Rule 4.2, which the stem also names, so the practical step is to check the type of election and the state’s law first. The same words may be forbidden in a nonpartisan state and allowed in a partisan one.

Exam Analysis Steps

Because the answer depends on facts outside the candidate’s own words, the analysis begins with the election and only then moves to the campaign materials. The steps are these:

Identify whether the contest is partisan or nonpartisan under the state’s election law, since that fact decides whether the exception is in play.
If the contest is partisan, ask whether the state’s own law permits judicial candidates to use party labels and party endorsements, and treat the permission as covering only what that law allows.
If the contest is nonpartisan, or the state’s law gives no permission, ask whether the candidate publicly described himself or herself as the candidate of a political organization, which paragraph (A)(6) forbids.
In the same posture, ask whether the candidate sought, accepted, or used a political organization’s endorsement, which paragraph (A)(7) forbids even when the party volunteered it.

The first step does the real work. An answer that calls party identification forbidden to all judicial candidates, with no mention of the type of election, is incomplete in a partisan state, and an answer that treats every judicial race as partisan is incomplete in a nonpartisan state. A second frequent error borrows the wrong paragraph. A judge who urges voters to elect someone else falls under paragraph (A)(3), while a candidate who advertises a party’s backing for his or her own election falls under paragraphs (A)(6) and (A)(7).

Campaign Committees

Rule 4.1(A)(8) moves from the signals a candidate sends to the money a candidate collects. It forbids a judge or judicial candidate to “personally solicit or accept campaign contributions other than through a campaign committee authorized by Rule 4.4.”¹⁷ Two verbs close two routes. To solicit is to ask for the contribution, and to accept is to take it when it is offered, whether or not anyone asked. The committee exception qualifies both verbs, so the rule does not ban fundraising; it requires a committee to carry it out. A candidate can run a well-funded campaign, but an organization stands between the candidate and the donor.

Florida’s version of the canon shows what such a committee does. It lets a candidate establish “committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy.”¹⁸ The same Florida canon also barred the candidate from personally soliciting attorneys for publicly stated support, so the committee carried that task as well.¹⁹

Rule 4.4 authorizes these committees, and its text is not reproduced in this reading. Florida’s statutes show the kind of conditions a state can attach to committee fundraising. Contributors may not give more than $1,000 per election to a trial court candidate or $3,000 per retention election to a Supreme Court justice, and committee treasurers must file periodic reports naming each contributor and the amount of each contribution.²⁰ Those are Florida’s limits, offered as an illustration and not as the terms of Rule 4.4. Caps limit what any one donor can give, and reports let the public see who gave.

The harder question is why the candidate’s own request is treated differently from the committee’s, since a letter asking for money reads much the same whoever signs it. The Model Code’s solicitation clause draws the line between committee and direct solicitation to avoid real or perceived coercion of the parties and lawyers who are likely to appear before the candidate later as a judge.²¹ The Supreme Court explained the mechanism in Williams-Yulee. A candidate who asks for money places his name and reputation behind the request, and the person asked knows that the same person who signed the fundraising letter might one day sign the judgment, which creates pressure to comply that a third party’s request would not.²² The candidate’s personal involvement also creates the public appearance that the candidate will remember who says yes and who says no.²³ A committee puts an organization between the donor and the person who may rule on the donor’s case, so a State may conclude that two solicitations similar in substance present markedly different appearances to the public.²⁴ The rule’s text treats its two verbs alike, which puts a check handed to the candidate in person on the forbidden side of the line.

The case that gave the Court this occasion shows the forbidden side. In Williams-Yulee, the candidate lost the primary to the incumbent judge, and the Florida Bar then filed a complaint charging a violation of Rule 4–8.2(b), which requires judicial candidates to comply with applicable provisions of Florida’s Code of Judicial Conduct.²⁵ The ban the Court reviewed was Canon 7C(1), the restriction on a candidate’s personal request for money.

The committee mailing and the check at the supper differ in where the donor meets the candidate. The mailing keeps the donor in contact with an organization, while the supper puts the donor face to face with the person who may rule on the donor’s case. That difference is also why the freedom to speak for one’s own candidacy does not carry over to fundraising. A candidate may tell voters who he is and what he would do on the bench, yet a personal request for money falls inside the solicitation ban, and the ask belongs to the committee. The opposite slip treats the committee as unconditioned, but the exception covers only a committee authorized under Rule 4.4 and operating within the conditions that rule sets.

The committee model still leaves the candidate some involvement. Florida’s advisory committee read its canon to let a candidate serve as treasurer of his own campaign committee, learn the identity of contributors, and send thank-you notes to donors.²⁶ A note thanking a donor for a gift the candidate did not request asks for nothing, so it stays outside the personal-solicitation ban. Those are Florida’s readings of Florida’s canon, and the committee in Rule 4.1(A)(8) must be one authorized under Rule 4.4. The pattern to carry forward is that the candidate’s own request is barred while the committee channel stays open. Though candidates cannot ask for money, they can direct their campaign committees to do so.²⁷ The Court also said that a State should not be punished for leaving open more, rather than fewer, avenues of expression, especially where nothing suggests a pretextual motive for the restriction.²⁸

A ban on asking for money restricts speech, which is why Williams-Yulee became a First Amendment case. The Court found Canon 7C(1) not overinclusive: by any measure it restricts a narrow slice of speech, leaving judicial candidates free to discuss any issue with any person at any time.²⁹ The restriction is also the common approach, since, according to the American Bar Association, 30 of the 39 States that elect trial or appellate judges have adopted restrictions similar to Canon 7C(1).³⁰ The last section of this chapter develops the Court’s full analysis. For now, apply the personal-solicitation limit as written.