Speaking from the Bench: Judicial Campaigns, Judges’ Speech, and the First Amendment

28 Pages Posted: 16 Aug 2011

See all articles by Jason M. Shepard

Jason M. Shepard

California State University, Fullerton

Genelle I. Belmas

California State University, Fullerton

Date Written: 2010

Abstract

Caperton v. A.T. Massey Coal, Inc. (129 S. Ct. 2252, 2009) raised a host of questions about when and if judges must recuse themselves for conflicts of interest based on campaign donations. In addition to the recusal issue, the case raises First Amendment questions. One possible strength of the Caperton holding is that it provides at least some remedy for egregious influence of campaign spending without real First Amendment problems. The First Amendment does influence the Supreme Court’s decisions regarding campaign expenditures and communications; in Citizens United v. Federal Election Commission (2010 U.S. LEXIS 766, Jan. 21, 2010), the Court struck down two precedents that limit spending on “electioneering communications” on First Amendment grounds. We offer a multi-element model that takes into account both of these decisions in an attempt to ensure that the public receives election information from both judges and campaign donors while still preserving the integrity of the judiciary through the option of recusal.

Keywords: campaign finance, judicial speech, recusal, First Amendment

Suggested Citation

Shepard, Jason M. and Belmas, Genelle I., Speaking from the Bench: Judicial Campaigns, Judges’ Speech, and the First Amendment (2010). Drake Law Review, Vol. 58, No. 3, 2010, Available at SSRN: https://ssrn.com/abstract=1910022

Jason M. Shepard

California State University, Fullerton ( email )

PO Box 6846
Fullerton, CA 92831
United States

HOME PAGE: http://www.jasonmshepard.com

Genelle I. Belmas (Contact Author)

California State University, Fullerton ( email )

800 N State College St
Fullerton, CA 92831
United States

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