Indiana Law Review Public Funds and the Regulation of Judicial Campaigns Richard Briffault* Introduction Recent discussions ofjudicial 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," 1 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 ofevolving campaign finance practices and more politicized campaigning may call into question the fairness ofjudicial 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 "announcing]" 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. 2 These courts either have held such content restrictions * Joseph P. Chamberlain Professor of Legislation; Director of the Legislative Drafting Research Fund; Vice Dean Columbia Law School. This Paper was prepared specifically for the Symposium on Judicial Campaign Conduct and the First Amendment. The views expressed in this Paper are those of the author and do not necessarily reflect the views or opinions of the National Center for State Courts, the Joyce Foundation, or the Open Society Institute. Supported (in part) by a grant from the Program en Law & Society of the Open Society Institute, as well as a grant from the Joyce Foundation. 1 . Peter D. Webster, Selection and Retention ofJudges: Is There One "Best"' Method?, 23 FLA. St. U. L. Rev. 1,19(1 995), quoted in David B. Rottman & Roy A. Schotland, What Makes Judicial Elections Unique?, 34 LOY. L.A. L. Rev. 1369, 1372 (2001). 2. These provisions may be traced to the Canons of Judicial Ethics adopted by the American Bar Association in 1924 and the Model Code ofJudicial Conduct adopted by the ABA in 1972. See e.g., Republican Party of Minn. v. Kelly, 247 F.3d 854, 864-67 (8th Cir.), cert, granted, 122 S. Ct. 643 (2001) (providing history of restrictions on campaign conduct ofjudicial candidates in Minnesota). See generally Randall T. Shepard, Campaign Speech: Restraint and 820 INDIANA LAW REVIEW [Vol. 35:819 invalid 3 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.4 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.5 A second set ofcases has dealt with what might be called the tone ofjudicial campaigning. In an effort to promote campaign civility, a number ofstates forbid judicial candidates from making false, misleading or deceptive statements. 6 Several courts have recently held that these provisions are overbroad and unduly constrainjudicial campaign speech. They have either invalidated the provisions,7 or saved them by narrowing them to apply only to statements that are either intentionally false or issued with reckless disregard as to their truth or falsity. 8 One solution for the rising costs of judicial elections is public funding.9 Public funding could reduce or eliminate the burdens of fundraising, judicial candidates' dependence on private donors, and the concomitant concern that such contributions affect judicial decision-making. 10 The National Summit on Improving Judicial Selection recently recommended public funding as one of a Liberty in Judicial Ethics, 9 GEO. J. LEGAL ETHICS 1059, 1063-66 (1996). 3. See, e.g., Buckley v. 111. Jud. Inquiry Bd., 997 F.2d 224 (7th Cir. 1993); Beshear v. Butt, 773 F. Supp. 1229 (E.D. Ark. 1991); ACLU of Fla., Inc. v. Fla. Bar, 744 F. Supp. 1094 (N.D. Fl. 1990); J.C.J.D. v. R.J.C.R., 803 S.W.2d 953 (Ky. 1991). 4. See, e.g., Republican Party ofMinn., 247 F.3d at 861; Stretton v. Disciplinary Bd. of the Sup. Ct. of Pa., 944 F.2d 137 (3d Cir. 1991). See also Ackerson v. Ky. Jud. Retirement & Removal Comm'n, 776 F. Supp. 309, 315 (W.D. Ky. 1991) (affirming code precluding taking positions on issues "likely to come before the court"); Deters v. Jud. Retirement & Removal Comm'n, 873 S.W.2d 200, 205 (Ky. 1994) (same). The constitutional standard is similar to the 1990 version of the ABA Model Code of Judicial Conduct, which precludes a judicial candidate from "mak[ing] statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court." Model Code of Judicial Conduct Canon 5A(3)(d)(ii) (1990). 5. Buckley, 997 F.2d at 229 ("there is almost no legal or political issue that is unlikely to come before the judge of an American court"). 6. See Richard A. Dove, Judicial Campaign Conduct: Rules, Education, andEnforcement, 34 LOY. L.A. L. REV. 1447, 1448-49 (2001). 7. See, e.g., Weaver v. Bonner, 1 14 F. Supp. 2d 1337 (N.D. Ga. 2000); Butler v. Ala. Jud. Inquiry Comm'n, 1 1 1 F. Supp. 2d 1224 (M.D. Ala. 2000). 8. In re Chmura, 608 N.W.2d 3 1 (Mich. 2000). Some courts, however, vigorously enforce rules against misleading or deceptive statements. See, e.g. , In re Jud. Campaign Complaint Against Hein, 706 N.E.2d 34 (Ohio 1 999); In re Jud. Campaign Complaint Against Burick, 705 N.E.2d 422 (Ohio 1999). 9. See, e.g. , AMERICANBARASS'N, STANDING COMM. ON JUDICIAL INDEPENDENCE, REPORT OF THECOMMISSIONON PUBLIC FINANCING OF Judicial CAMPAIGNS (200 1 ); Charles Gardner Geyh, Publicly Financed Judicial Elections: An Overview, 34 LOY. L.A. L. REV. 1467 (2001). 10. See Geyh, supra note 9, at 1 468-7 1 . 2002] REGULATION OF JUDICIAL CAMPAIGNS 82 1 number of steps for reforming judicial elections. 11 Could public funding also be used to regulate the content of judicial campaigns? Specifically, could a state require, as a condition for the provision of public funds to a judicial candidate, that the candidate agree to adhere to a code of campaign speech broader and more restrictive than one that could be constitutionally imposed on the candidate? The U.S. Supreme Court has held that although a mandatory limit on the amount of money a candidate can spend in his election campaign is unconstitutional, a grant of public campaign funds to a candidate may be conditioned on the candidate's agreement to limit total campaign expenditures. 12 Arguably, if public funding can be conditioned on a waiver ofthe constitutional right to engage in unlimited spending, it might also be conditioned on a waiver ofthe right to engage in certain types of constitutionally protected speech, such as taking positions on political and legal issues or making statements that may be misleading or deceptive. Part I ofthis Paper considers whether public funding for ajudicial candidate can be made contingent on the candidate's adherence to an otherwise unconstitutional campaign speech code. 13 It first examines the case law concerning the restrictions on campaign spending currently attached to various federal and state public programs, and considers the implications of the constitutionality ofthe spending limit condition for a speech code condition on public funding. It then turns to the unconstitutional conditions doctrine, which shapes the ability of government to impose conditions on public grants. Under the doctrine, although government may use public funds to promote some activities and not others, it cannot condition the availability ofpublic benefits on the waiver offundamental rights. As I will indicate, the doctrine is a murky one, and provides no clear answer to the question ofwhether a campaign speech code could be an unconstitutional condition. Part I concludes by assessing the significance of some of the distinctive features of a judicial candidate speech code—including the impact on the extent of campaign speech, the arguably 1 1 . Call to Action: Statement ofthe National Summit on Improving Judicial Selection, 34 LOY. L. A. L. REV. 1353, 1358 (2001) [hereinafter Call to Action] (recommendation sixteen: "States in which candidates compete forjudicial positions should consider adopting public funding for at least some judicial elections.*'). 12. See Buckley v. Valeo, 424 U.S. 1, 57 n.65 (1976). Accord Republican Nat'l Comm. v. FEC, 445 U.S. 955 (1980), atfg, 487 F. Supp. 280 (S.D.N.Y. 1980). 1 3 . This Paper does not directly address the question of whether campaign codes that limit judicial candidates' statements on political and legal issues or that preclude "misleading" or "deceptive" or intentionally false statements are unconstitutional. This Paper considers whether campaign speech restrictions vhat might be unconstitutional could be enforced as conditions attached to a voluntary public funding system. For that purpose, I assume without deciding that somejudicial campaign speech constraints are unconstitutional. Indeed, the very reason to consider whether campaign restrictions can be tied to public funding is that the speech restrictions would be unconstitutional, otherwise the restrictions could be imposed directly and would not need to be made a condition of public funding. 822 INDIANA LAW REVIEW [Vol. 35:819 distinctive nature ofjudicial campaigns, and the fact that such a code would be applied only to candidates and not to independent committees—in the determination of the constitutionality of a speech code condition for public funding. There is no clear answer to the question of whether a campaign speech code could be made a condition ofjudicial candidate public funding. Although the code would be voluntary in the sense that a candidate would be free to decline the public grant and thereby avoid the speech restriction, the voluntariness ofthe program may not be enough to save the condition. Such a condition could not be justified in terms of the traditional goals of public funding, such as reducing fundraising burdens, mitigating the potential corrupting effects ofcontributions, and facilitating candidate communications with the electorate. Rather, the conditions would change the content ofcampaign statements. The powerful First Amendment interest in unconstrained discussion of political issues and the important role candidate statements play in informing voters—the very factors which have contributed to the growing judicial hostility to traditional judicial campaign codes—might very well lead a court to conclude that making adherence to a restrictive code a prerequisite for the receipt of campaign funds is unconstitutional. On the other hand, it could be argued that campaign speech codes promote the due process value ofjudicial impartiality. 14 By reducing the opportunities for judicial candidates to commit themselves on specific issues or make misleading statements, a campaign speech code may increase both the likelihood the parties who appear before elected judges receive impartial justice and the public's confidence in the courts. Although mandatory restrictions onjudicial candidate statements might violate the First Amendment's proscription of content-based regulation of political speech, the combination of voluntary restrictions and a substantial public interest in assuring the fairness—and the appearance of fairness—of the courts might be enough to save an otherwise unconstitutional speech code. The operating assumption of this Paper is that the question of the constitutionality ofjudicial candidate speech codes may be separated from the constitutionality ofa speech condition for public funding, but in the end the two issues are closely intertwined. The free speech and due process concerns that frame the debate over whether speech codes are constitutional are also likely to be central to the determination ofthe constitutionality ofa speech code condition on campaign funds—although the weighing and balancing offree speech and due process concerns might come out differently in the context of a voluntarily accepted condition for a public grant. Part II then briefly considers other mechanisms for using public funds to improve judicial campaigns. Several jurisdictions that provide public funds to candidates for executive or legislative office require candidates who accept such funds to also participate in public debates. There is some argument that in 1 4. Indiana Chief Justice Shepard has argued that judicial campaign speech constraints are justified by the due process interest in an impartial judiciary. 2002] REGULATION OF JUDICIAL CAMPAIGNS 823 debates candidates generally seek to present themselves positively and to avoid the negative campaigning often characteristic of sound-bite ads. Debates, thus, might improve the tone ofjudicial election campaigns. A debate requirement almost certainly passes constitutional muster, although there are no cases on point. Similarly, a number of jurisdictions provide candidates with the opportunity to place a statement in a government-funded voter pamphlet or voter guide. The state could most likely require that a judicial candidate's statement in a voter pamphlet abide by certain content restrictions. Access to debates and voter pamphlets could not be used to directly regulate the content of judicial campaigning generally, but states may be able to use debate requirements and voter pamphlet rules to affect the tenor ofjudicial campaigns. I. Public Funding and a Campaign Speech Code A. Public Funding and the Spending Limit Condition In Buckley v. Valeo, ]5 the Supreme Court held that limits on campaign spending burden freedom ofspeech, 16 must be subject to strictjudicial scrutiny, 17 and, to be constitutional, must be narrowly tailored to promote a compelling government interest. 18 The Court held that neither limiting the amount ofmoney spent on campaigns nor equalizing the financial resources available to candidates is a compelling government interest. 19 The Court found that the only compelling interest that might support spending limitations was "the danger of candidate dependence on large contributions," but the Court found that the interest "in alleviating the corrupting influence of large contributions" 20 was served by contribution limits and reporting and disclosure requirements. Thus, a limit on candidate spending could not bejustified by the interests in preventing corruption and the appearance of corruption. 21 In a footnote to its invalidation of the spending limit, however, Buckley referred to another section of the opinion that considered the new federal program of providing public funds to presidential candidates. The Court stated briefly that when Congress engages in the public financing of election campaigns, it "may condition acceptance ofpublic funds on an agreement by the candidate to abide by specified expenditure limitations. Just as a candidate may voluntarily limit the size ofthe contributions he chooses to accept, he may decide to forgo private fundraising and accept public funding." 22 The portion of Buckley concerned with the presidential public funding 15. 424 U.S. 1(1976) 16. Id. at 19-23. 17. Mat 25. 18. Id. 19. Id. at 16-17. 20. Id. at 56. 21. Id. at 55-57. 22. Id. at 57 n.65. 824 INDIANA LAW REVIEW [Vol. 35:819 system did not directly consider the constitutionality of the spending limit condition. Rather, it dealt with such questions as Congress' authority under the General Welfare Clause to adopt public funding and the equal protection issues raised by the law's differential treatment of major party, minor party, and new party candidates, and by the formula used to fund presidential primary candidates. The Court specifically found that public funding was a valid exercise ofCongress' authority "to reduce the deleterious influence of large contributions on our political process, to facilitate communication by candidates with the electorate, and to free candidates from the rigors offundraising."23 The Court did note in passing that "one eligibility requirement for matching funds is acceptance of an expenditure ceiling." 24 Apart from the aforementioned footnote in the section of the opinion addressing the constitutionality of spending restrictions generally, Buckley did not consider the constitutional question presented by the spending limit condition on public funding. Four years later, the Supreme Court affirmed without opinion a lower court decision which expressly considered and rejected a challenge to the public funding spending limit condition. In Republican National Committee (RNC) v. FEC,25 the three-judge court took its cue from the Buckley footnote's reference to the voluntariness of the spending limit and framed the issue in terms of whether a candidate "is somehow or other forced as a practical matter to accept public funding [with the spending limit] in lieu of unlimited private funding and spending." 26 Noting that candidates could decline public funding and rely on private funds, and that privately funded campaigns could be successful, the court rejected the argument that candidates were coerced into accepting publ ic funding with its attendant spending limit. 27 It then considered whether a spending limitation was an unconstitutional condition on a candidate's voluntary acceptance ofpublic funding. 28 As "Congress may not condition a benefit on the sacrifice of protected rights," 29 the court looked to whether the spending limitation burdened a protected right and whether, if so, the burden wasjustified by a compelling state interest. 30 The RNC court doubted whether public funding with a spending limit burdened any protected right as the law simply provided "an additional funding alternative" to the traditional system of private funding without limits: "Since the candidate remains free to choose between funding alternatives, he or she will opt for public funding only if, in the candidate's view, it will enhance the candidate's powers ofcommunication and association." 31 Nevertheless, the court 23. /3. 85. See Shepard, supra note 2, at 1084. 86. This is not to say that legislative or executive officers must view themselves solely as agents of the voters. They may view themselves as Burkean trustees for the people and act based on their view of what is in the public interest, even if that is at odds with the views of those who voted for them. But it also appropriate for legislators and executive officials to make decisions based largely on the preferences of those who voted for them. 87. See Shepard, supra note 2, at 1 069 n.5 1 . 836 INDIANA LAW REVIEW [Vol. 35:819 legal issues. Even most of the recent decisions invalidating traditional speech codes recognize the distinctive nature of the judiciary and of judicial campaigning. In striking down broad prohibitions on the discussion of political or legal issues, the courts have generally indicated that more narrowly drawn restrictions on the discussion of political or legal issues "likely to come before" the judge may be sustained. 88 It is inconceivable that such a restriction on campaigning or executive or legislative office would be valid. 89 The case for the constitutionality of a candidate speech restriction as a condition for public funding would combine a reliance on Buckley's assumption that an otherwise unconstitutional spending limit would become constitutional when made a condition for a voluntary public funding program with an argument based on the substantial constitutional concerns that support the call forjudicial candidate speech constraints. The argument would be that even though ajudicial candidate speech constraint would be unconstitutional if mandatory, given the state's concerns with assuring judicial fairness and public confidence in the impartial administration ofjustice, it would be constitutional for a state to seek to recalibrate the First Amendment/Due Process Clause balance by providing a monetary incentive for candidates to voluntarily restrict their campaign statements. Because candidates could remain outside the public funding system and still successfully seek judicial office, the condition arguably would not so much "distort" thejudicial electoral process as create a parallel campaign format more consistent with the government's legitimate goal of reducing the politicization ofjudicial elections. D. Additional Considerations 1. Comparisons with Buckley.—In deciding whether a judicial candidate speech condition would pass constitutional muster, two further comparisons with Buckley may be in order. First, a campaign speech code presents a greater danger of "distorting" the campaign than a campaign spending limit. Campaign spending limits do not alter the heart of a campaign—which is what candidates and other interested individuals and groups have to say about the candidates and issues. Spending limits may restrain the quantity of speech, but not the core of candidate and interest group autonomy concerning the definition of their messages. Moreover, so long as the spending limit is voluntary and attached to the provision of funds, the total package of public-funds-plus-limits does not constrain speech. Presumably, in deciding whether or not to accept public funding, each candidate will make a choice based on which form of funding—public or private—will generate the bigger campaign war chest and, thus, ultimately fund more speech. So long as the choice is voluntary, the existence ofthe public-funding-with-spending-limit option can only increase the total amount of speech. It cannot reduce the amount of speech, the variety of speech or the candidates' control over what they say. 88. Id. at 1 093 (quoting Model Code of Judicial Conduct Canon 5A(3)(c)(ii) ( 1 990)). 89. See Brown, 456 U.S. at 45. 2002] REGULATION OF JUDICIAL CAMPAIGNS 83 7 On the other hand, public funding with a campaign code can reduce campaign speech. If public funding expands the candidate's war chest, then the ability to pay for more ads and to avoid the burdens of fundraising provides a powerful incentive for a candidate to accept public funding even with a campaign speech condition. However, with the addition ofa speech condition, even though candidates may be able to finance more ads, their ads may be required to say less and to address fewer issues. Moreover, the candidates will have to cede to the state the power to determine the content of their campaign messages. This closely resembles the kind of distortion that troubled the Court in League of Women Voters and LSC. The second comparison with Buckley, however, may cut the other way. The due process arguments that support restrictions onjudicial candidate speech may be more constitutionally compelling than the equality concerns that provided the impetus for limits on campaign spending. In Buckley, the Supreme Court famously—or notoriously—rejected as "wholly foreign to the First Amendment" the "concept that government may restrict the speech of some elements of our society in order to advance the relative voice of others." 90 In the Court's view there was no equality case at all for spending limits on either candidates or independent committees. 91 The only constitutional concern that could support spending limits was prevention of corruption and the appearance of corruption; that concern, however, was insufficient because, in the Court's view corruption was adequately addressed by contribution limits. 92 By contrast, the lower courts that have addressed restrictions on judicial candidate speech have generally agreed that there are legitimate constitutional concerns that justify some limits on candidate speech in order to assure judicial impartiality and the appearance ofimpartiality. Their conclusion was that certain restrictions went too far and unduly interfered with the constitutionally protected interests of candidates in addressing political and legal issues. They found that the interest in judicial fairness and integrity can be satisfied by more limited restrictions on candidate comments on matters likely to come before the court and knowing falsehoods. It may be that given the legitimacy ofthe government's underlying concern, a court might accept a state's determination that more restrictive measures are appropriate and would accept the state's provision of public funds to secure candidates' voluntary compliance with a more restrictive speech code. 93 90. 424 U.S. 1,48-49(1976). 91. Mat 35-36. 92. See id. at 12-59. 93. Recent court cases narrowing judicial candidate speech codes in order to protect First Amendment rights are consistent with the 1 990 Model Code of Judicial Conduct, which precludes only pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office!,] • • • statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court[,] . . . [and] misrepresentations of) the identity, qualifications, 838 INDIANA LAW REVIEW [Vol. 35:819 Although the Supreme Court's recent decision in LSC seems to put new bite into the unconstitutional conditions doctrine, it might also provide some support for the constitutionality of a judicial candidate speech condition. A central concern of the LSC Court was protecting an "independent judiciary."94 The Court was troubled by the restriction on attorney speech because [b]y seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise ofthe judicial power The restriction imposed by the statute . . . threatens severe impairment of the judicial function. 95 If the Court were persuaded that judicial candidate announcements concerning either legal and political issues or misleading or deceptive statements similarly threaten to compromise the independence ofthe judiciary and the appearance of judicial impartiality, the Court might be willing to treat the provision of governmental incentives to avoid such announcements and statements as constitutional. 2. Inability to Restrict Speech ofIndependent Committees.—An additional factor that may be relevant to the constitutional analysis is that a judicial candidate speech code will not constrain the independent committees and interest groups that are playing an increasingly important role in judicial election campaigns. 96 In the campaign finance context, the Supreme Court has held that even when candidates accept public funding with spending limits, interest groups remain free to spend unlimited sums supporting or opposing spending-limited candidates provided their spending decisions are independent ofthe candidates. 97 Similarly, candidates' voluntary adherence to a code limiting their statements concerning political and legal issues and precluding them from making deceptive or misleading statements would not limit the ability of independent groups to take out ads that link candidates to political and legal positions or to make deceptive and misleading assertions about the candidates. It is not clear how this cuts. On the one hand, it could weaken the constitutional case for a candidate speech code restriction. In assessing the constitutionality ofrestrictions on speech, a court will consider not only whether the restriction is supported by a compelling justification, but also whether the restriction is narrowly tailored to promoting that justification. A speech code limited only to candidates may not be effective in promotingjudicial impartiality, present position or other fact concerning the candidate or an opponent. Model Code of Judicial Conduct Canon 5A(3)(d) (1990). 94. 531 U.S. 533, 545(2001). 95. Id. at 545-46. 96. See Anthony Champagne, Interest Groups andJudicial Elections, 34 LOY. L.A. L. REV. 1391 (2001). 97. See FEC v. Nat'l Conservative Political Action Comm., 470 U.S. 480 (1985) (holding unconstitutional a statute that limited spending of independent committees with respect to presidential candidate who had accepted public funds). 2002] REGULATION OF JUDICIAL CAMPAIGNS 839 reducing the politicization ofjudicial elections, or securing public confidence in the even-handed administration ofjustice. Independent committees and interest groups remain free to spend large sums ofmoney on heated electioneering efforts that tiejudicial candidates to particular political and legal positions. On the other hand, political statements byjudicial candidates arguably pose a distinctly greater threat to judicial impartiality and public confidence than statements by third parties. A state could appropriately target its efforts not on politicization of judicial elections in general but on the particular threat to judicial integrity that results from statements by judges and would-be judges. Indeed, it could be argued that the continuing opportunity for unfettered independent committees would mitigate the loss of information and arguments relevant to voter decision- making that might result from constraints on judicial candidates. II. Candidate Debates and Voter Pamphlets A. Mandatory Candidate Debates Even ifthe provision ofpublic funds to a candidate could not be conditioned on a candidate's adherence to a speech code, public funds might be used to improve the quality ofjudicial campaign discourse in other ways. At least three states (Arizona, 98 Kentucky," and New Jersey 100) and two cities (New York101 and Los Angeles 102 ) require candidates who receive public funds to participate in public forums or debates. Debates can provide an opportunity for a fair and open exchange of views among competing candidates. Unlike brief sound-bite ads, debates present the candidates themselves to the voters for sustained periods of discussion. As a result, debate statements are more likely to involve positive assertions by the candidate about his credentials and views rather than negative attacks on an opponent narrated by a faceless voice. Misleading and deceptive statements may be less likely to occur with the opponent present and ready to respond. In a format that emphasizes orderly interchange with a moderator and with each other, the candidates may also have an incentive to emphasize their thoughtful, statesmanlike—or judicial—qualities, rather than engage in the cut- and-thrust of a stump speech. Although it is not clear that debates would depoliticize the content of a judicial campaign—indeed, discussion of political and legal issues might increase—they could improve the tone ofthe campaign's tone. There are no cases that consider challenges to the constitutionality of mandatory debates as a condition of public funding. Candidates generally seek the opportunity to participate in debates rather than exclusion from them. Debates sponsored by government or civic organizations will usually be 98. Ariz. Rev. Stat. Ann. § 1 6-956(A)(2) (Supp. 2001 ). 99. Ky. Rev. Stat. Ann. § 121 A. 100 (Banks-Baldwin 1993). 1 00. N.J. Stat. Ann. § 1 9:44A-45 ( 1 999). 101. N.Y.C. Admin. Code § 3-709.5 (2001). 102. L.A. Mun. CODE § 49.7. 19.C (1997). 840 INDIANA LAW REVIEW [Vol .35:819 perceived as an additional benefit for candidates rather than as a burden. Nevertheless, if challenged, a debate requirement is likely to pass constitutional muster. It may be enough that the public funding is voluntary, so that the candidate is free to decline to participate in the debate if she is willing to forego public funds. Even if voluntariness is not enough, debates closely serve the legitimate government interest in voter education and information, while the burden on candidate speech is minimal. Although a candidate who is a poor debater might prefer to refrain from debating, nothing in a debate requirement limits the ability of a candidate to campaign in any other way. The debate requirement would neither distort the electoral process nor take over a candidate's campaign, and therefore such a requirement is unlikely to be an unconstitutional condition. B. Voter Pamphlets In at least five states and the City ofNew York, the government produces and distributes to the voters pamphlets or guides that provide information concerning the candidates on the ballot. 103 These can be an important source of voter information, particularly injudicial elections, which are often poorly covered by the media. For many voters, the only statements they will read about a judicial election are contained in the voter pamphlet. Several judicial campaign reform proposals have called for increasing the use ofvoter guides or voter pamphlets, 104 with one bar association specifically proposing that the content of statements concerning judicial candidates be limited to "biographical data, including professional qualifications," implicitly avoiding statements on political and legal issues. 105 The California Supreme Court has upheld the constitutionality ofa state law which tightly constrained the content ofjudicial candidate statements in a voter pamphlet. Clarkv. Burleigh™ 6 considered a California law limiting the statement of a candidate for nonpartisan office (including judicial offices) to his or her name, age, occupation and a "brief description . . . ofthe candidate's education and qualifications," and adding specifically for judicial candidates that the statement "shall not in any way make reference to other candidates for judicial 1 03 . See Committee on Government Ethics, Report on Judicial Campaign Finance Reform, 56 Record of the Ass'n of the Bar of the City of New York 1 57, 1 65-66 (200 1 ) [hereinafter Gov 't Ethics Report]; Roy A. Schotland, Campaign Finance in Judicial Elections, 34 LOY. L.A. L. REV. 1 489, 1 506 (2001 ); Roy A. Schotland, Elective Judges ' Campaign Financing: Are State Judges ' Robes the Emperor's Clothes ofAmerican Democracy, 2 J.L. & POL. 57, 127-28 (1985) [hereinafter Schotland, Emperor's Clothes]. 104. See Call to Action, supra note 1 1, at 1357 (recommendation nine: "State and local governments should prepare and disseminatejudicial candidate voter guides by print and electronic means to all registered voters before any judicial election at no cost to judicial candidates."); see also Gov 't Ethics Report, supra note 103; Schotland, Emperor's Clothes, supra note 103. 105. Gov 't Ethics Report, supra note 1 03, at 166. 106. 841 P.2d975(Ca. 1992). 2002] REGULATION OF JUDICIAL CAMPAIGNS 84 1 office or to another candidate's qualifications, character, or activities." 107 The provision was challenged by a municipal court judge who, in his campaign for a superior court seat, criticized the incumbent by name and listed examples ofthe incumbent's failure to "get tough with criminals." 108 The candidate claimed, and the intermediate appellate court agreed, that the voter pamphlet was a "limited public forum" for candidates' statements; the state could limit the category of speakers entitled to use the forum to candidates, but content restrictions on their statements would be subject to strict judicial scrutiny. 109 A unanimous California Supreme Court rejected the public forum claim. 110 The court found that California did not give candidates access to the voter pamphlet to air their views generally but only to provide statements concerning their qualifications. 111 Because the statute that authorized the pamphlet limited both who could include statements and what those statements could say, the pamphlet was not a public forum for First Amendment purposes: "[I]n the statutory candidate's statement the Legislature has created a forum that is limited both as to speakers—nonpartisan candidates for local judicial office—and as to topic—the candidates' own qualifications for the office. There is no unlimited, 'public' component, and hence no designated public forum." 112 As a result, the rational basis test—not strict scrutiny—applied, and the court found that the state could reasonably choose to limit the voter pamphlet statements to biographical information. 1 13 The voters were unlikely to have such information otherwise, so the pamphlet promoted the state's interest in a more informed electorate. 114 "Attack" statements could undermine the informational purpose: "[T]he statement is necessarily so brief that to the extent a candidate devotes it to attacking others it would convey even less factual information about the candidate's own background and qualifications." 115 Moreover, given that candidates are not allowed to see their opponents' statements until the pamphlets are published, "all such candidates would have an incentive to misuse them by attacking their opponents in order to avoid the possibility ofunanswered attacks by others in the same forum." 116 In addition, the limitation in candidates' statements restricts only this one channel of communication with the voters; there remain substantial alternative channels open to candidates for judicial office that do not bar criticism of opponents—e.g., advertisements or 107. Id. at 977-78 (citing Cal. ELEC. CODE § 10012). 108. Clark v. Burleigh, 279 Cal. Rptr. 333, 336 (Ct. App. 1991). 109. Id. at 337. 110. Clark, U\ P.2d at 987-88. ill. Mat 987. 1 12. Id. at 985 (emphasis in original). 113. Id. at 987-88. 114. Id. 115. Id. at 987. 116. Id. 842 INDIANA LAW REVIEW [Vol. 35:819 interviews in local newspapers or on local radio and television programs, direct mailings to the community, neighborhood distribution of handbills, and personal appearances at local functions. 117 The California Supreme Court's public forum analysis is debatable. In an earlier decision involving a content-neutral state requirement that candidates pay a share ofthe costs ofpublishing the pamphlet's costs, the Ninth Circuit had held that the voter pamphlet is a limited public forum. 118 A U.S. Supreme Court case concerning ballot pamphlets avoided the issue. That case involved a California law barring political parties from endorsing candidates for nonpartisan office and, inter alia, barring mention of such endorsements in candidate voter pamphlet statements. The Court resolved the issue on ripeness grounds and refrained from discussing the constitutional status of the voter pamphlet. In a dissenting opinion, Justices Marshall and Blackmun commented that the public forum status of the voter pamphlet is "unsettled," 119 while in a separate dissent Justice White concluded the voter pamphlet's "use may be limited to its intended purpose which is to inform voters about nonpartisan elections." 120 Whatever the public forum status of the ballot pamphlet, the California Supreme Court's resolution of the challenge to the limits on the content of candidate statements is consistent with the U.S. Supreme Court's unconstitutional conditions cases. Even with a constraint on candidate statements, the voter pamphlet could be described as a state effort to increase the amount of information available to the voters. The government could decide to promote the dissemination ofjust biographical information about candidates on the theory that this is the information that government wants to be certain that voters receive. The limitation is viewpoint-neutral and tightly limited to the publicly provided benefit. The restriction would resemble the restrictions sustained in Regan and Rust. Such a restriction would not reduce the range of arguments candidates can make or deny them control over the content of their campaign messages outside ofthe voter pamphlet. It would not limit their ability to present other information and arguments to the voters. To be sure, the pamphlet is likely to be a key source of information for many voters. However, this would be an instance ofgovernment supplementing existing campaigns with a new medium of information, not a distortion of pre-existing campaign structures. It would probably be unconstitutional to constrain the opportunity to place a statement in a voter pamphlet on a candidate's agreement to abide by a speech code for all campaign communications. However, both the unconstitutional conditions doctrine and the California Supreme Court's analysis of the public 117. Id. 118. Kaplan v. County of L.A., 894 F.2d 1076, 1080 (9th Cir. 1990). See also Gebert v. Patterson, 23 1 Cal. Rptr. 150 (Ct. App. 1986) (applying limited public forum analysis to invalidate application of fee requirement to indigent proponent of ballot argument). 119. Renne v. Geary, 501 U.S. 312, 345 (1991) (Marshall, J., dissenting). 120. Id. at 333 (emphasis in original) (White, J., dissenting). 2002] REGULATION OF JUDICIAL CAMPAIGNS 843 forum question support a conclusion that a viewpoint-neutral restriction on the content of candidate statements in a voter pamphlet would be constitutional. Conclusion The central question of this Paper—could an otherwise unconstitutional judicial candidate speech code be made a condition for a candidate's participation in a judicial election public funding program—remains open. Buckley provides support for an argument that the voluntariness of the public funding program would be sufficient to justify a speech constraint on publicly funded candidates. However, the unconstitutional conditions doctrine suggests that some conditions that burden the liberties of grant recipients are unconstitutional even though the grantee is free to turn down the grant and the conditions. The unconstitutional conditions question is ultimately intertwined with the underlying question ofthe constitutionality of speech codes. As several federal and state courts have recently found, a restrictive campaign speech constraint would burden protected First Amendment rights, while the goals of protecting judicial impartiality, and the appearance thereof, may be adequately served by more limited restraints. A restrictive speech constraint raises the specter of an unconstitutional governmental effort to transform a "medium of expression" by driving discussion of political and legal issues out of an electoral process in which political and legal issues may be central to voter decision-making. 121 Nevertheless, the goals underlying judicial candidate speech constraints derive from substantial constitutional concerns of assuring due process to litigants and promoting public confidence in the administration ofjustice. It may be that the undoubted importance of the public goals, coupled with the voluntariness of a speech constraint, would enable a government to use public funds as an incentive to secure judicial candidates' agreement to a more restrictive speech code that would provide greater protection of judicial impartiality and greater security against the politicization of the courts. Apart from the question of judicial candidate speech codes, states could almost certainly use public funds to secure judicial candidate participation in debates that might elevate the tone ofjudicial campaigns. So, too, a state could provide judicial candidates the opportunity to submit a statement, subject to content and tone limitations, that would be mailed to all voters. Although these programs would not regulate judicial campaigning outside ofthe debate or voter pamphlets, they would provide a means of shaping the content and tone of the information voters are most likely to rely upon when they cast their ballots in judicial elections. 121. The condition might be more likely to survive if it applies only to communications funded by the public grant. Conversely, a condition that applies to all of a candidate's spending, including the portion funded by private contributions, may create a greater constitutional burden.