Permitted Campaign Activity

Permitted Campaign Activity

Rule 4.2(B) turns from what a candidate must do to what a candidate may do. A candidate for elective judicial office "may, unless prohibited by law, and not earlier than" a stated period before the first applicable primary election, caucus, or general or retention election, undertake the activities listed beneath it.¹ The verb marks the difference. The duties in Rule 4.2(A) bind every candidate; the activities in (B) are open to any candidate who wants them and bind no one. A campaign with no committee, no website, and no appearance at a political dinner breaches nothing.

Two conditions come with every permission under (B), and an answer should test both before asking whether the activity appears on the list. The first is the phrase "unless prohibited by law." A statute or regulation in the candidate's own jurisdiction can withdraw what the Model Rule allows, and the candidate's duty, taught above, to follow that jurisdiction's election laws then controls. The second is the time window. The Model Rule leaves the length of the period in brackets for each jurisdiction to fill in, so a problem must supply the number, and a permission reaches only activity that begins inside the window.

Every permission in (B) also sits beneath the umbrella duty in Rule 4.2(A)(1), which requires the candidate to act at all times in a manner consistent with the independence, integrity, and impartiality of the judiciary.² The prohibitions taught later in this chapter apply as well. A permitted medium does not make every message permitted, and a permitted committee does not license every way of raising money. On an exam, then, the finding that an activity is allowed under (B) begins the analysis and does not end it. The purpose of the permissions is practical: an elected judiciary depends on candidates reaching voters, and a candidate who could not form a committee, speak in public, or appear at political gatherings could not ask for votes at all. The first permission, the campaign committee, is the vehicle through which a campaign's money and organization are handled.

Campaign Committees

Rule 4.2(B)(1) lets a candidate "establish a campaign committee pursuant to the provisions of Rule 4.4."³ Florida's canon describes the committee as a body of "responsible persons" who secure and manage the expenditure of funds for the campaign and obtain public statements of support for the candidacy.⁴ The verb is may, so no candidate has to form one, and the two conditions that attach to every permission in (B) still apply: a committee set up before the window opens, or in a state whose law forbids it, falls outside the permission. The permission matters most because of what the Code withholds from the candidate.

The Model Code's solicitation clause authorizes a candidate to solicit contributions through a campaign committee but prohibits the candidate from soliciting them directly. Its aim is to avoid real or perceived coercion when a candidate asks for money from parties or lawyers likely to appear before that candidate later as a judge.⁵ The mechanism is easy to trace. A lawyer asked for money by the person who may soon decide the lawyer's cases knows exactly who is asking, so refusing risks offending a future decision-maker and giving risks buying that decision-maker's goodwill. A request from a committee of volunteers puts someone else between the two, and a refusal then disappoints a supporter rather than the judge. The Supreme Court described the resulting line in Williams-Yulee v. Florida Bar: candidates "cannot say, 'Please give me money,'" but they "can, however, direct their campaign committees to do so."⁶

Florida's treatment shows where the line falls. Its canon forbids a candidate to solicit campaign funds personally, or to solicit attorneys for publicly stated support, but lets the candidate establish committees, which may solicit contributions and public support from any person or corporation the law authorizes to give.⁷ The state's judicial ethics advisory committee reads the canon to allow a candidate to serve as treasurer of the candidate's own campaign committee, to learn who contributed, and to send thank-you notes to donors.⁸ Those readings show that the restriction attaches to the act of asking and leaves the candidate's involvement in the committee, and knowledge of its donors, untouched. That is Florida's reading of its own canon, so a stem that depends on it will state it. Whether a line between asking and knowing survives First Amendment scrutiny is the question the last section of this chapter takes up.

The committee route does not free the money from regulation. Florida shows two ordinary controls. Its statutes cap what any contributor may give, $1,000 per election to a trial court candidate and $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 gift.⁹ A cap limits how much claim any one donor can build on a candidate's goodwill, and a report lets the public and rival candidates see who is paying for the race. The figures are one jurisdiction's choice, so an answer should apply these controls to the numbers a problem supplies and should not recite a figure from memory. A stem built on this permission usually describes what a committee did and asks whether the candidate is exposed, and three questions sort most of them: who asked, how much was taken, and whether the money was reported.

Both candidates used the committee form, so the form cannot separate them. Brandt's committee breached the cap when it took the oversized check and breached disclosure when it filed nothing, and either breach alone would suffice. Mensah's committee asked for gifts within the limit and left a public record of who paid, which is the permitted route working as designed. That some of Mensah's donors may be lawyers who will one day appear in court changes nothing, because the controls the committee must satisfy concern the size of each gift and the public record of it, and the donors' occupations are not among them.

The usual mistake reads the permission to form a committee as permission for the candidate to do whatever the committee does. The permission covers the committee's solicitation. A candidate with a flawless committee who still telephones a lawyer to ask for a contribution has made the personal solicitation the clause bars, and the committee's existence is no defense.

Speaking for the Candidacy

Rule 4.2(B)(2) permits a candidate to "speak on behalf of his or her candidacy through any medium, including but not limited to advertisements, websites, or other campaign literature."¹¹ The phrase "including but not limited to" makes the three named media examples rather than a closed list, so radio and television spots, billboards, mailers, social media posts, and speeches at civic meetings fall within the permission as readily as a website does. The usual conditions attach: the speech must fall inside the jurisdiction's window and must not be prohibited by law. The verb is may, so a candidate who campaigns quietly breaches nothing.

The Code opens the channel this wide because an election works only if voters have something to decide on. Voters choose among judicial candidates from what the candidates and others tell them about experience, temperament, and approach, and a rule that silenced campaigns would leave the electorate choosing on name recognition alone. Speech about qualifications and views also reaches the voter without giving any donor, organization, or official a claim on how the candidate will decide cases. The Rules therefore protect the broad channel and spend their restrictions on the narrower categories of speech that would compromise the independence, integrity, or impartiality the umbrella duty names.¹²

Williams-Yulee shows how the restrictions and the permission fit together. In upholding Florida's ban on personal solicitation, the Court answered the charge that the ban was a "wildly disproportionate restriction upon speech" by noting that a candidate who cannot say "Please give me money" can still direct a campaign committee to say it.¹³ The ban takes one request out of campaign speech and leaves the rest of the channel open, a point the last section of this chapter develops.

The permission covers the channel and leaves the content subject to every other rule. Four limits matter most, and each is taught elsewhere in this chapter:

• Statements that are false or misleading remain barred.
• Pledges and promises remain barred.
• Comments on pending cases remain restricted.
• The candidate must review and approve campaign statements and materials before release.

Every item sits in a permitted medium, yet the content splits in two. The account of experience, philosophy, and docket management is what the permission exists to protect. The bribery banner is a knowingly false statement, so the choice of a website does not save it, and the candidate who approved the page owns the banner along with the rest.

The most tempting exam argument holds that a permitted medium cures a prohibited message. Williams-Yulee closes that door. The Court accepted that the public-confidence interest "may be implicated to varying degrees in particular contexts," but held that "the interest remains whenever the public perceives the judge personally asking for money."¹⁴ A website, a mailing, or a broadcast changes how many people hear a message; it does not change whether the candidate may deliver it.

Endorsing Candidates

Rule 4.2(B)(3) permits a candidate to "publicly endorse or oppose candidates for the same judicial office for which he or she is running."¹⁶ Two features of the text decide most problems. The permission runs in both directions, since the candidate may urge voters to choose a rival and may urge them to reject one. It is also tied to an office, the same judicial office the candidate is seeking, so the office sought by the person being endorsed or opposed marks where the permission ends. The usual conditions travel with it, the time window and "unless prohibited by law," and the verb is may, so a candidate who prefers to stay out of the contest between rivals breaches nothing.

The tie to the same office puts the boundary where it belongs. A judgeship race is a single contest among a handful of named candidates, and a candidate who asks voters for that seat already takes part in it. Saying which of the other candidates should win or lose is part of the argument the candidate makes about that election, in the same way that comparing records with an opponent is. The message commits the candidate to no party organization, public official, or interest group outside the contest, so it gives no outside force a claim on how the candidate will decide cases, and the independence and impartiality the umbrella duty protects stay intact.¹⁷

A race for any other office changes the analysis, because the candidate is no longer a participant in the contest being discussed. The permission stops at the same judicial office, so a candidate who endorses or opposes someone seeking a different office cannot invoke it, and the prohibitions taught later in this chapter and the general limits on judges' political activity govern instead.¹⁸ The line has a reason. An endorsement takes a side, and the side may win. A mayor, a county commissioner, or a district attorney whom a judge has endorsed may expect goodwill, and one whom the judge has opposed may resent it, and these officials and their offices appear in court constantly, the district attorney's office in every criminal case. A defendant prosecuted by an office whose head the judge campaigned for can fairly doubt that the judge starts from neutral ground. An endorsement also lends the standing of the bench to a political race, and the umbrella duty in Rule 4.2(A)(1) exists to prevent that appearance.¹⁹

The same boundary applies to a family member's campaign, and this is where students most often talk themselves out of the rule. A judge who publicly urges the election of a brother to the city council has a sympathetic motive, but the effect on the public is the same as with any other endorsement: a judge has taken a side in a political race. The permission contains no exception for relatives. It names only candidates for the same judicial office, so a relative running for a different office falls outside it.²⁰

Sorting by office resolves each statement. Nakamura's support for Alvarez and opposition to Dunmore belong to the contest she is in, so the permission covers both. The plea for her brother belongs to a different contest, and the family tie does not move it back inside. Prescott's attack on the district attorney fails for the reason the mechanism supplies: the office he opposed appears before the court he seeks, so he has taken a side against a frequent litigant in a race he is not running in. Nakamura's first and last statements involve the same speaker, the same speech, and the same medium, so the only fact separating them is the office sought.

A statement that passes step three is still subject to the rest of the Code. The permission to oppose a rival lets the candidate tell voters to choose someone else, and it gives no license for a knowingly false claim about that rival, because the limits on false or misleading statements govern the content of every message. The candidate must also review and approve any campaign material that carries the endorsement before release. The permission answers only whether the target of the statement is an acceptable one, and the content of the statement is tested separately.

Political Events

Rule 4.2(B)(4) permits a candidate for elective judicial office to "attend or purchase tickets for dinners or other events sponsored by a political organization or a candidate for public office."²² The Code marks political organization with an asterisk, flagging it as a defined term. A county party holding its annual dinner is the plain example, and an event sponsored by someone running for public office is the second category the text covers. The usual conditions attach, the time window and "unless prohibited by law," and because the verb is may, a candidate who avoids every such gathering breaches nothing.

The permission belongs to the candidate. A sitting judge who is not running cannot invoke it, and whether she may attend a partisan event at all is a question for the general rules on judges' political activity, which this permission does not address. The campaign gives the candidate a reason the sitting judge lacks. A candidate must ask for votes, and the people who fill a room sponsored by a political organization are the activists, volunteers, and officials whose opinions voters hear. A rule that kept the candidate out of every such room would shrink the campaign to whatever the candidate could do alone.

The permission is drawn narrowly because attending a partisan event can look like alignment with its sponsor, and parties and the officials they elect appear before courts constantly. Each limit in the text answers a piece of that appearance. The time window confines the exposure to the campaign itself. The two verbs confine the candidate's involvement to presence: attending, or buying the ticket that admission requires. A guest takes no part in running the organization and pays only for the seat, so the sponsor gains a guest and not an officer or a benefactor. That is where this permission stops short of party leadership and contributions. The text names neither, so neither falls within it, and the later section on prohibited campaign conduct treats each on its own terms.²³

Both guests sit at the same dinner and pay for the same kind of seat, so neither the event nor the ticket separates them. Ramos is using the permission: he is a candidate, he acts inside the window, and he does only what the rule names, which is to attend an event that a political organization sponsors and to buy a ticket for it. Whitfield has no campaign to point to, so the permission gives her nothing to rely on, and the general rules on a judge's political activity govern her.

An essay stem that places a candidate at a party dinner usually adds a second event, and the work is to sort what the permission covers from what it leaves out.

The dinner and both tickets fall within the permission. The vice chair post is a leadership role in a political organization, and the check is a contribution to one. The text says nothing about either, so the permission does not carry them, and each is tested under the rules on party leadership and on contributions taught later in this chapter.

Two opposite errors recur on this topic. The first reads the permission as clearing everything a candidate does at the event. Attendance is one activity, and what the candidate says or does there is measured separately against the umbrella duty, which requires the candidate to act at all times consistently with the independence, integrity, and impartiality of the judiciary.²⁴ A promise to the party chair about how future cases will come out, made over dinner, is judged as a promise and does not become acceptable because the setting was a permitted one. The second error treats the general concern about judges and politics as if it swallowed the permission, and concludes that a candidate who attends a party dinner has necessarily compromised impartiality. Presence at an event commits the candidate to no party and no outcome, which is why the Code allows it inside the window.

Party Identification

Where a state fills judicial seats through partisan elections, in which candidates run as the nominees of political parties, the Code lets a candidate identify himself or herself as a candidate of a political organization and seek, accept, and use the endorsements of a political organization.²⁶ The verb is may, which leaves a partisan candidate free to say nothing about a party's backing, and a jurisdiction's own law can still limit the permission, so a stem that supplies such a rule controls. Because the permission is tied to the type of election, the same words that are allowed in a partisan race can breach the Code in another kind of race.

The permission exists because of how a partisan election is built. Nominees emerge from party primaries or caucuses, the ballot carries each nominee's party label, and that label is often the first thing a voter learns about the candidates. A rule forbidding a candidate to say which party's nominee she is would forbid her to say what the ballot itself says, and taking part in that kind of election would become impossible. Endorsements follow the same logic. A party in a partisan system organizes its supporters around its nominees, so a candidate who could not ask for that backing, take it when offered, and tell voters about it would compete under a handicap the state's own election design created. The permission follows the structure of the election: a state that has chosen to elect judges by party has made the party label part of how voters choose, and the Code lets candidates operate within that choice.

Outside a partisan election the same acts lack that justification and carry the costs the rest of the Rules try to avoid. A nonpartisan ballot carries no party label, so a candidate who announces that he is the party's candidate adds a political tie the election itself did not supply. A retention election asks voters whether a sitting judge should keep the seat, and party backing would turn that question into a partisan contest. In either format the party is the kind of outside force taught in the section on independence. An organization that endorses a judge expects the endorsement to count for something, and its officials and members appear in court, so the opposing side has reason to doubt that the judge starts from neutral ground. The general prohibition on identifying with a party and seeking its endorsement therefore governs nonpartisan and retention elections, and the umbrella duty to act at all times consistently with independence and impartiality explains why.²⁷

The two candidates did the same things with the same party and the same signs, so the fact that decides the answer lies outside their control: whether the state's election is partisan. Okonkwo acts within the permission, because the election is partisan and she does only what the rule names, which is to identify with the party and to seek and use its endorsement. Delgado falls under the general prohibition, because his race is nonpartisan. He breached it by announcing a party tie and by seeking the endorsement, and it does not matter whether the committee ever grants his request. A sitting judge on a retention ballot stands where Delgado stands.

The permission's two clauses cover different acts. The first concerns what a candidate says about herself, namely that she is a political organization's candidate. The second concerns the organization's support, and its three verbs describe steps the candidate may take in sequence: asking for the endorsement, taking it when it is offered, and putting it to work by displaying it on literature and advertisements. Neither clause concerns the candidate's support for anyone else. A candidate's public support for or opposition to rivals for the same judicial office comes under the permission taught just before, while this one concerns the backing a political organization gives the candidate.

The permission has limits that its text marks. A candidate who accepts the county party's endorsement and then takes a post as a party officer, or writes the party a check, has done things the permission does not mention, and the prohibitions taught earlier in this chapter's list of prohibited conduct govern them. The umbrella duty also continues to measure the whole campaign. Taking a party's endorsement gives the party no claim on how cases will be decided, but a candidate who lets party leaders approve his positions on bail or sentencing in exchange for their support compromises independence.

Students go wrong in two directions. Some condemn the partisan candidate because a party tie looks political, which overlooks that the Code authorizes both clauses in a partisan race. Others clear a candidate in a nonpartisan or retention race because party endorsements are a familiar part of politics, which overlooks the general prohibition that governs there.