Mudslinging is an accepted part of American political campaigns. As Sen. Hillary Rodham Clinton (with an allusion to President Harry S Truman) suggested more than once during the recently concluded presidential primary season, candidates who cannot “stand the heat” of attacks “should get out of the kitchen.”1
But should that acceptance extend to campaigns for judicial office? The King County Bar Association has responded with a resounding “no.”
For years, the KCBA has encouraged judicial candidates to campaign only in a manner that is civil and truthful. Recent action by the KCBA Board of Trustees has now placed KCBA in the forefront of organizations attempting to rein in misleading and often distasteful campaigning by political entities not formally affiliated with a judicial candidate.
Judicial Campaigns: A Different Animal
Unlike most campaigns for partisan, more blatantly “political” positions, judicial campaigns in this state historically have been nonpartisan and, on the whole, tame. This reflects the expectation that judges should not behave like politicians. Once elected, judges are expected to apply the law objectively — whether or not they agree with it — to the facts presented in the case before them. The public does not expect or want judges to make decisions driven by ideology or constituent interests.
This leads to similar expectations for how judicial candidates should campaign. Among other things, Washington’s Code of Judicial Conduct states that all candidates for judicial office, both incumbents and challengers,
(a) should maintain the dignity appropriate to the judicial office, and should encourage members of their families to adhere to the same standards of political conduct that apply to them; [and]
(b) should prohibit public officials or employees subject to their direction or control from doing for them what they are prohibited from doing under this canon; and except to the extent authorized ... they should not allow any other person to do for them what they are prohibited from doing under this canon[.]2
Politicization of Judicial Campaigns
Nevertheless, in recent years campaigns for judicial office in Washington increasingly have sounded like any other electoral campaign. In the midst of the last statewide judicial elections in 2006, Tacoma’s News Tribune decried “[o]ne of the nastiest, most expensive efforts ever mounted on behalf of a state Supreme Court candidate [that] has left a stain on the state’s most important court that isn’t likely to fade any time soon.”3
But, as the paper pointed out, the biggest offenders weren’t the candidates themselves — although there was plenty of blame for them to share — but organizations, purportedly independent of any candidate’s campaign, that felt little or no compunction about distorting the records of candidates whose election they opposed. This phenomenon was most evident in the campaign between then-incumbent Supreme Court Chief Justice Gerry Alexander and challenger John Groen. As the News Tribune explained:
[T]he ugliest campaigning didn’t come from either candidate’s campaign, at least not directly. It came from political action committees that flooded this year’s Supreme Court races with more than $2.2 million and made the Groen-Alexander contest the second-costliest in the nation.
Alexander’s camp was not blameless, financing mailers that depicted Groen as a thuggish cartoon and television ads that, according to Groen, mischaracterized his positions on stem cell research and abortion rights.
But it was far outspent by Groen’s allies. The [Building Industry Association of Washington] funneled money through a political action committee that, along with an out-of-state interest group called Americans Tired of Lawsuit Abuse, bought $638,000 of television ads that portrayed Alexander as a threat to public safety, too old for the job and blasé about fellow Justice Bobbe Bridge’s drunken-driving arrest.4
The Fair Campaign Practices Guidelines and Committee
To preserve the dignity and integrity of campaigns for judicial office and to foster public respect for persons elected to serve as judges, the KCBA years ago enacted its Fair Campaign Practices Guidelines. These Guidelines set forth the KCBA’s view of “the minimum standards applicable to campaigns for judicial office.” They apply to all elections for the Washington Supreme Court, King County Superior Court, King County District Court and the municipal courts within King County, and those elections for Division I of the Washington Court of Appeals that are voted on by King County residents.5
The Guidelines are enforced by the Fair Campaign Practices Committee, which investigates and responds to complaints about unfair and deceptive practices in judicial campaigns. The Committee’s goal is twofold: to correct false or misleading campaign activities as they arise and to deter future violations. Mindful that Washington judicial candidates are required to engage in the political process, the Committee tries to balance the competing interests of candidates, who need to deliver legitimate campaign messages to the voting public, and voters, who expect absolute honesty from judicial candidates.6
Dealing With Conduct of “527 Organizations”
Historically, the Committee’s mandate extended only to conduct of judicial candidates and persons under their control. It had no authority to act on complaints directed at activities of 527 Committees, political action committees (i.e., PACs) and similarly situated “independent” political organizations (“527 Organizations”).
The inability to respond to complaints about allegedly misleading advertising by 527 Organizations during the 2006 election cycle — especially in the Groen-Alexander race — frustrated some Committee members. Consequently, the Committee’s chair, in his June 2007 annual report to the Board of Trustees, urged the Board to appoint a task force to determine whether it should authorize the Committee to act on complaints aimed at organizations unaffiliated with a candidate. The Board accepted this recommendation.7
After a lengthy assessment of First Amendment issues, efforts by other bar associations to deal with alleged unfair campaign conduct of 527 Organizations, and the Committee’s power and ability to compel corrective action by 527 Organizations (which, unlike candidates, are not subject to the Code of Judicial Conduct and the Fair Campaign Practices Guidelines), the task force submitted its recommendations to the Board. On June 25, the Board approved the task force’s recommendations and corresponding amendments to the Guidelines, making the KCBA the first bar association in Washington to implement a procedure designed to lessen the negative impact of 527 Organizations on judicial campaigns.
Restraining 527 Organizations Through the Candidates
As a result of the Board’s action, the Committee for the first time has some ability to discourage 527 Organizations from engaging in the kind of intemperate conduct that marred the 2006 Groen-Alexander election. Because the Committee has no direct power over 527 Organizations, the amended Guidelines strive to encourage 527 Organizations to tone down their messages and eschew misleading political advertisements by providing for potential sanctions against the candidates whom the organizations support.
Thus, under the revised Guidelines, following receipt of a written complaint concerning a 527 Organization’s alleged unfair campaign conduct, Committee members will contact all candidates in the same race to determine their views as to whether the challenged conduct is unfair. The whole Committee will then assess the information gathered and determine whether the conduct in fact is unfair.
If the answer is yes, the Committee chair will ask the candidate benefiting from the 527 Organization’s unfair conduct to publicly repudiate the untruthful or deceptive statement made by the organization or take other appropriate action. If the candidate declines, the Committee can alert the Board of Trustees to the candidate’s failure to comply with its request. The Board will then independently determine whether the conduct of the 527 Organization is unfair and merits public rebuke. If the Board agrees that the organization engaged in conduct that would constitute an unfair campaign practice if engaged in by a candidate, it can issue a press release criticizing the candidate.8
The KCBA is optimistic that the prospect of public repudiation of 527 Organizations by the candidates whom they support will have a self-policing effect that deters these organizations from crossing the line between fair and unfair campaigning. Indeed, the recent amendment of the Guidelines also may lead candidates, who presumably would prefer not to publicly repudiate statements made by their supporters, proactively to encourage their supporters not to distort the truth about their opponents or otherwise engage in the kind of campaigning that the candidates themselves may not.9
Joe Bringman is of counsel to Perkins Coie LLP, focusing primarily on securities and corporate governance litigation, insurance coverage litigation and appeals. Bringman is the immediate past chair of the Fair Campaign Practices Committee and a former KCBA officer and trustee. He can be contacted at 206-359-8501 or JBringman@perkinscoie.com.
1 E.g., Elisabeth Bumiller, “Clinton Retreats on Issue of Men vs. Women,” N.Y. Times, Nov. 3, 2007, at A18 (available on New York Times website under the revised title “Clinton and Opponents Tangle Over Attacks on Her”).
2 CJC Canon 7(B)(1)(a)–(b).
3 Editorial, “Dirty Campaigning Defiles State Judiciary,” News Trib. (Tacoma), Sept. 22, 2006, at B6.
4 Id. Many of these independent political organizations are referred to as 527 Committees, named after a section of the U.S. Tax Code under which their tax status is regulated.
5 The current version of the Fair Campaign Practices Guidelines can be found on the KCBA website at http://www.kcba.org/ScriptContent/KCBA/judicial/faircampaign/guidelines.pdf.
6 The mechanics of how the Committee investigates and assesses complaints, and makes recommendations for corrective action, were described in last month’s Bar Bulletin. See Neal Philip, “The Role of the KCBA Fair Campaign Practices Committee,” Bar Bull. (KCBA), July 2008, at 18.
7 The Board appointed Joe Bringman, who at the time was committee chair, to lead the task force. Also appointed to the task force were committee members Tamara Nelson, Leslie Arai, Jill Skinner and Ray Weber. (Nelson succeeded Bringman as committee chair on July 1.)
8 Each year, KCBA sends each declared judicial candidate a copy of the Fair Campaign Practices Guidelines and a pledge form by which the candidate agrees to conduct his or her campaign in compliance with the Code of Judicial Conduct and the Guidelines. Commencing this year, the pledge includes an explicit agreement by the candidate, upon request of the KCBA or the Fair Campaign Practices Committee, “to repudiate statements or other conduct of certain third parties that, if engaged in by a candidate, would violate the Code of Judicial Conduct and/or the Guidelines.” Regardless of whether candidates sign the pledge — the only power KCBA has to compel candidates to sign is moral suasion — the Committee will treat them as if they did, thereby providing equal treatment to all candidates and holding all candidates to the same standards. In addition, a candidate’s failure to sign the pledge may be disclosed to other KCBA committees (including the relevant Judicial Screening Committee) and the public.
9 The Washington Committee for Ethical Judicial Campaigns, recently formed by the Washington State Judicial Selection Coalition, similarly has requested judicial candidates to pledge to “publicly disavow advertisements that impugn the dignity, integrity, or independence of a candidate” and to “use my best efforts to have that advertising modified or discontinued.” Unlike KCBA’s Fair Campaign Practices Committee, the membership of the Committee for Ethical Judicial Campaigns is evenly divided between lawyers (including one retired judge) and non-lawyers. See Press Release (Washington Committee for Ethical Judicial Campaigns May 19, 2008) (copy on file with author).
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