Indiana Law Review A Commentary on Public Funds or Publicly Funded Benefits and the Regulation of Judicial Campaigns Lillian R. BeVier* Professor Briffault's paper 1 is an elegant and virtually unassailable analysis of the question of whether receipt of public campaign funds by candidates for judicial office may, consistently with modern First Amendment doctrine, be conditioned upon the candidates' agreement to certain constraints on the content of their campaign speech. In particular, Professor Briffault considers the constitutionality of conditioning receipt of public funds on judicial candidates' agreeing to avoid deceptive and misleading communications, 2 to participate in debates, 3 to abide by viewpoint neutral restrictions on the content of their statements in voter pamphlets, 4 and to refrain from announcing their positions on legal and political issues generally. 5 Professor Briffault understandably finesses the question ofwhether these judicial candidate speech codes would violate the First Amendment ifadopted without the carrot ofpublic funding; he assumes that they would. Concluding that they pass Buckley 's voluntariness test, 6 he proceeds to analyze them pursuant to the notoriously indeterminate unconstitutional conditions doctrine and, not surprisingly, his analysis leads him to an indeterminate conclusion. 7 I agree with Professor Briffault that, on the basis ofpresent First Amendment doctrine, the central question he poses in his paper cannot be answered with confidence, at least not ifone takes everything the Supreme Court has said about elections and candidates' speech in other election contexts and assumes that its underlying rationale applies with equal vigor to the speech of judicial candidates. 8 It is on this point that this Commentary will take issue with him, though not so much with the accuracy of his analysis of the state of the law as with its normative thrust—or lack thereof. In other words, I think he is correct that courts in the future are as likely as courts have been in the past to begin their * Doherty Charitable Professor and Class of 1963 Research Professor University of Virginia School of Law. 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 ofthe National Center for State Courts, the Joyce Foundation, or the Open Society Institute. Supported (in part) by a grant from the Program on Law & Society of the Open Society Institute, as well as a grant from the Joyce Foundation. 1 . Richard Briffault, Public Funds or Publicly Funded Benefits and the Regulation of Judicial Campaigns, 35 IND. L. REV. 819 (2002). 2. Id. at 820. 3. Hat 839-40. 4. Id. at 840-43. 5. Hat 819-20. 6. See Buckley v. Valeo, 424 U.S. 1, 57 n.65 (1976). 7. Briffault, supra note 1, at 828-36. 8. Hat 822. 846 INDIANA LAW REVIEW [Vol. 35:845 analysis of judicial election speech regulations by reasoning from First Amendment premises that were developed in other election contexts.9 However, I have considerable qualms—more so, apparently, than does Professor Briffault—about whether this is the correct First Amendment starting point. In addition, the indeterminacy of Professor Briffault' s conclusion with respect to his central inquiry invites speculation about why this uncertainty exists and how such a muddle came about. This Commentary will offer some thoughts along those lines—thoughts which will no doubt resonate with and represent variations on themes that will have permeated the discussions that have already taken place at this Symposium on Judicial Campaign Conduct and the First Amendment. The thoroughness and transparency ofProfessor Briffault's analysis and his apparent familiarity of the First Amendment terrain of candidate speech generates an impression somewhat akin to that which Chief Justice Shepard expressed in his 1 996 essay: ,0 that standard First Amendment analysis "obscures and undervalues the relationship between litigants' interests in the neutral adjudication of their claims and judicial campaigning." 1 ' Conventional approaches to the question ofjudicial candidate campaign speech have forced Professor Briffault (and courts that have ruled on First Amendment challenges to judicial speech codes) to try to fit a square peg—namely, speech ofcandidates for judicial office—into a round hole—namely, First Amendment doctrine concerning speech of ordinary citizens and of candidates for legislative or executive office. This is particularly apparent in Professor Briffault's analysis of whether judicial speech codes would "distort" or "reform" a medium of expression, 12 for the arguments he puts forward pass each other like ships in the night instead of taking issue with one another. This suggests that neither First Amendment doctrine in general, nor the particular doctrines that have emerged from Buckley and its progeny, nor the doctrinal chaos of the "unconstitutional conditions" cases that Professor Briffault so ably recounts 13 are adequate for the task of identifying, much less of sorting out, the interests that conflict when the subject is regulation of the speech of candidates for judicial office. One reason for this inadequacy, to be sure, is a function ofthe fact that First Amendment doctrine itself has become so formulaic. It pretends to invite analysts to play a sort ofpaint-by-numbers game and seems to suggest that ifone touches all the familiar bases ("is the regulation viewpoint or content based?" "does it achieve a compelling state interest by the least restrictive means?") the one true answer will readily emerge. In fact, however, far from eliminating the First Amendment's indeterminacy, the formulas merely disguise it. The doctrine, in other words, is like the emperor who has no clothes. This aspect of First Amendment doctrine is of course not unique to our problem of public funding 9. Id at 827. 1 0. Randall T. Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 9 GEO. J. Legal Ethics 1059 (1996). 11. Id at 1083. 12. Briffault, supra note 1, at 833-36. 13. Mat 828-36. 2002] A RESPONSE TO PROFESSOR BRIFFAULT 847 conditioned on adherence to speech codes by candidates for judicial office, but it is exacerbated in the context we are considering. This is so simply because the interests at stake on both the First Amendment side and the governmental interest side of the balance are not interests that the Court has spent much time or effort considering. Thus what at first glance seem to be the most obviously relevant precedents offer much less guidance than First Amendment precedents usually do—and that is precious little. Implicit in what I havejust said is the controversial proposition that the First Amendment interests at stake injudicial elections are in fact different, not only in kind, but also in degree, from those that the Court has considered in prior cases dealing with candidate speech or unconstitutional conditions. The proposition amounts to a claim that candidates for judicial office are not the legal or constitutional equivalents of either ordinary citizens or candidates for other elective offices; the scope and extent oftheir First Amendment rights, therefore, ought not in the first instance to be measured by the same yardstick that applies to candidates for legislative or executive office. ChiefJustice Shepard and others have made this point, and Professor Briffault summarizes it in his discussion of whether judicial candidate speech codes would "reform" or "distort" judicial election campaigns. 14 My quibble with Professor Briffault' s paper is that it does not give the argument quite the credence or attention it deserves, nor does he fully develop its implications. Indeed, consistently with his otherwise admirable fair-mindedness, he presents—as if it were equally persuasive and normatively equivalent—the counter-argument, which is to the effect that candidates for judicial office "no less than any other person, [have] . . . First Amendment rightfs] to engage in the discussion ofpublic issues and vigorously and tirelessly to advocate [their] own election. . . ," 15 But I would like to put on the table (or, perhaps, back on the table) the proposition that, although it is constitutional and indeed has become quite common to select state judges by popular election, judicial elections are not all the same as elections of legislators, presidents, or governors. Indeed,judicial elections are an anomaly when considered both in the full context of our legal and our political traditions and in terms of separation of powers principles and the function ofjudges within a separated powers regime. Because judicial elections put both rule of law norms and commands ofthe due process clause at substantial risk, and because they invite judges to become embroiled in explicitly political disputes, neither the First Amendment rules of the democratic political game nor its solicitude for individual speakers are necessarily the appropriate starting point ofanalysis when it comes to regulating the speech of candidates for judicial office. I take up the former point first. Consider what our rule of law tradition requires: The rule oflaw signifies the constraint ofarbitrariness in the exercise of government power. . . . [I]t means that the agencies of official coercion 14. Id. at 833-36. 1 5. Brown v. Hartlage, 456 U.S. 45, 53 (1982), quoting Buckley, 424 U.S. at 52.