The U.S. Supreme Court could rule at any time on a case which could dramatically change the tenor of judicial campaigns in at least 30 states including Minnesota. How might Minnesota's campaigns change if the high court allows judicial candidates to speak their minds on legal and political issues likely to come before the court?
Minnesota's judicial election campaigns have been tame, if not invisible. But that isn't the case in the five states that allow judicial candidates to speak their minds on any and all legal and political issues.
Consider a television commercial that the Michigan Republican Party ran against E. Thomas Fitzgerald, who was challenging an incumbent Michigan Supreme Court justice. It begins with images of smiling young girls floating on inner tubes while the announcer talks about Fitzgerald's record on sex offenders (View ad in RealAudio).
University of Minnesota political science professor Larry Jacobs, who studies campaign ads, says this judicial campaign commercial is similar to partisan ads for legislative races. Jacobs says such ads in judicial campaigns erodes the court's impartiality.
"What's jarring about it is you've got a different part of the government being contested. This isn't for a seat in the House or Senate; not governor, but the judiciary," Jacobs says. "When you have these kinds of ads, they really cut to the core of the judiciary. To see the charges and counter charges thrown back and forth are jarring, particularly in a state where we're not used to this."
Voters in at least 30 states aren't used to them either because they, like Minnesota, limit what candidates can say during judicial campaigns. Those limits are based on the premise that judicial candidates who, for example, say they're tough on crime may leave the public with the impression that they'd rule based on their promises rather than the law.
But former Minnesota Republican Party head Bill Cooper says it's time Minnesota hold what "real judicial elections." Cooper, who's TCF Bank's CEO, personally financed much of the party's lawsuit challenging the judicial campaign speech limits.
"Under the present system, there's no discourse. If we are successful, you are going to have candidates talk about the issues," Cooper says.
Cooper predicts that if the court strikes down Minnesota's ethics rule, the public will have more information to weed out what he describes as advocacy judges.
"There are a lot of people, particularly conservatives, who believe the judiciary just doesn't interpret the laws but makes laws. They've usurped the power of the Legislature. And if they're going to usurp the power of the Legislature in that fashion, then they should be held accountable to the voters," he says.
He cites as an example, the Gomez decision. In that ruling, the Minnesota Supreme Court required the state to pay for some therapeutic abortions for women on public assistance.
He says another example is the U.S. Supreme Court's decision to overturn a law that required welfare recipients to live in a state for one year before they could receive higher benefits.
Some studies have found issues like these are magnets for single interest groups and political parties contributions. In the past five years, they've poured record amounts of money into state supreme court races.
Legal scholar Deborah Goldberg of NYU Law School's Brennan Center co-authored a study that found state Supreme Court candidates raised $45,000,000 in 2000. That's up 61 percent from 1998 and double that of 1994. She says it's unclear what comes first: the partisan speech or contributions. But the two feed off each other.
"One of the ways that candidates can raise money is by catering to special interests. So there's going to be pressure on them, to the extent that they need to raise funds, start speaking about the issues. That may very well undermine the ability to be impartial when they're on the bench," she says.
Minnesota and other states require judicial candidates to set up committees to solicit campaign contributions on their behalf so candidates are supposedly shielded from knowing who gives and how much. But Goldberg says those rules are easily circumvented.
"Other judges have told me that the rules are ridiculous and, in fact, the judges sit next to their committee chair and the judge calls up the buddy and says, 'I really want you to support me,' and the buddy says, 'well do you want me to give to your campaign?' And the candidate says, 'well I can't talk to you about the money, hang on a minute.' And he hands the phone to his campaign committee chair who says, 'yes we'd like you to contribute to our campaign,'" Goldberg says.
Outside groups not only give money to judicial candidates, they buy and run ads for them. The Michigan Chamber of Commerce ran a commercial to deflect attacks on three incumbent justices (View ad in RealAudio).
There's really nothing to keep interest groups from running these kinds of ads in Minnesota even now. The speech limits apply only to candidates and their committees; not independent groups without ties to the candidate.
Even if the U.S. Supreme Court throws out the Minnesota rule, there's no reason candidates couldn't refuse to announce their political and legal positions. Political parties are already discussing strategy. Republican Party spokesman, Bill Walsh predicts those candidates who opt out, will lose out.
"I think candidates who don't express opinions or announcement will be penalized by the voters. Voters want more information about who they're voting for and I think it's important they get more information," Walsh says.
DFL Chairman Mike Erlandson says his party strongly wants the speech restrictions to stay. But when asked whether the DFL would refrain from supporting candidates who'd take stands that mirror the party's values, he wouldn't answer the question directly.
"It's not about saying that you won't support people. But it's about making sure that individuals who become members of the court are getting there because of their experience, not because they have different political opinions," Erlandson says.
Jack Uldrich, who heads the Independence Party, says his party would support judicial candidates who refuse to announce positions as a way to fight fire with fire.
"I recognize that money will play a role and that maybe an alternative option would be to really court other people, attorneys, lawyers, people who support an independent judiciary and ask them for contributions," Uldrich says.
All of this of course depends on the U.S. Supreme Court. It could take a number of avenues from lifting speech limits entirely to maintaining the rule or something in between. So it's not only important who wins this case but how the justices write the opinion.More Information