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U.S. Supreme Court asked to review laws banning campaign speech for judges

September 27, 2010

Bopp, Coleson & Bostrom
1 South 6th Street
Terre Haute, IN 47807-3510

Monday, September 27, 2010
Contact: James Bopp, Jr.
Phone 812/232-2434; Fax 812/235 3685; jboppjr@aol.com

Supreme Court Asked to Review Laws Banning Campaign Speech for Judges

A collection of judges, judicial candidates, and advocacy groups from two states are seeking Supreme Court review of state regulations that place limits on the ability of judicial candidates to campaign for judicial office.

Every election Indiana Right to Life sends out a questionnaire asking judicial candidates to state their views on abortion and other issues. Judicial candidates have been reluctant to answer the questionnaire, citing a state rule prohibiting them from indicating how they will rule in a case. In 2008, Indiana Right to Life brought suit along with two judicial candidates, Judge David Certo and Torrey Bauer, claiming that the state rule violated their First Amendment rights. Judge Certo also challenged rules preventing him from asking family and friends for campaign donations and from publicly showing his support for the Republican Party through speeches and by asking for money for the Party. Last month the rules were upheld by the federal court of appeals.

Wisconsin Judge John Siefert brought suit challenging state rules preventing him from making endorsements or from personally asking for money during his upcoming 2011 election campaign. Earlier this summer the same federal appeals court ruled in a split decision that the state rules did not violate his First Amendment rights.

The Supreme Court has weighed in on the proper scope of judicial campaigns twice in recent years. In 2002, the Supreme Court ruled in Republican Party of Minnesota v. White that judicial candidates have a right to announce their political views during their election campaigns. And last year, in Capterton v. Massey, the Supreme Court held that a West Virginia judge was required to recuse himself in a case where one of the litigants had spent large amounts to defeat his opponent. These cases have spurred an increase in challenges to state regulations of judicial campaigns, many of which have been declared unconstitutional by federal appeals or trial courts.

James Bopp, Jr., lead counsel for the plaintiffs, said he is optimistic the court will take up these issues. “These decisions aren’t consistent with the First Amendment’s broad protections of political speech, and they most certainly aren’t consistent with what other courts are doing across the country. Judges that run for elective office and are entitled to ask for money, to state their views about other candidates, and to be involved with political parties just like any other candidate.” Bopp, an expert in campaign regulations, successfully argued the Republican Party of Minnesota v. White case before the Supreme Court.

The cases are Siefert v. Alexander and Bauer v. Shepard. Copies of the pleadings and the Court’s order are available in PDF format online at the James Madison Center’s website, www.jamesmadisoncenter.org, under the “Judicial Accountability Project” link.

James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and Co-Chairman of the Election Law Subcommittee of the Federalist Society.

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