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Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Thursday, September 10th, 2015

Worth noting: Washington State’s elected justices can’t personally solicit campaign cash

On Tuesday, The Seattle Times ran a column from Danny Westneat titled “The trouble with union donations, school cases“, which expressed discomfort over the fact that the Washington Education Association has previously donated money to the campaigns of several of the justices who now sit on our state Supreme Court.

Almost from the moment that the Court handed down its decision striking down I-1240 (charter schools), Washington conservatives — already unhappy with the Court’s recent McCleary order fining the state for failing to make adequate progress towards funding basic education — have alternately raged at the Court and at the WEA, which was a plaintiff in the lawsuit, as well as an opponent of I-1240.

They’ve essentially accused the Court of being in WEA’s pocket because a majority of its current members were recipients of WEA PAC money in 2014 or 2012.

Now Westneat is echoing and amplifying their criticism. He writes:

How can it not be a conflict of interest for judges to weigh cases brought by a top campaign backer?

Even if the rulings are 100 percent correct, the court is definitely risking its reputation — its appearance for fairness — by taking big donations from a special-interest group that is also a key plaintiff.

Four of the justices — Debra Stephens, Mary Yu, Charles Johnson and Mary Fairhurst — all got $1,900 contributions from the WEA during the 2014 campaign. That means the donations came after the WEA had filed suit against the charter-school law, and after the case had been appealed to the state Supreme Court. So the justices knew the case was coming, with the WEA as plaintiff, but took their money anyway.

This isn’t quite accurate. If Westneat intends to venture into the thicket where our sad excuse of a campaign finance system intersects with judicial ethics, he ought to make an effort to be as accurate and precise as possible.

Let me make one thing clear first: As an institution, “the court” cannot accept campaign cash. The campaign committees of its individual justices may, but only when they are standing before the voters at election time.

That doesn’t actually happen all that often, because Supreme Court justices serve six year terms. Like our U.S. Senators, they are only up every third cycle, unless they’ve won a special election to fill an unexpired term.

Notice that I said campaign committees.

Westneat’s column doesn’t talk about all of the restrictions that judicial candidates, including candidates for our state Supreme Court, are subject to with respect to fundraising and campaigning. These are spelled out in the Code of Judicial Conduct, which executive and legislative candidates are not bound by. Among these restrictions is Rule 4.1(A)(7), which says that judicial candidates may not

… personally solicit* or accept campaign contributions other than through a campaign committee authorized by Rule 4.4, except for members of the judge’s family or individuals who have agreed to serve on the campaign committee authorized by Rule 4.4 and subject to the requirements for campaign committees in Rule 4.4(B).

In other words:

Judicial candidates are generally prohibited from personally soliciting campaign contributions or personally accepting campaign contributions. See Rule 4.1(A)(7). This Rule recognizes that judicial candidates must raise campaign funds to support their candidacies, and permits candidates, other than candidates for appointive judicial office, to establish campaign committees to solicit and accept reasonable financial contributions or in-kind contributions.

You’ll recall that in the very last bit of the column I excerpted above, Westneat calls out four of the Court’s nine justices for taking the WEA’s money in 2014. To quote Westneat again: “So the justices knew the case [against charter schools] was coming, with the WEA as plaintiff, but took their money anyway.”

Westneat makes it sound as though these justices personally took money from the Washington Education Association in 2014. But they didn’t, because the Judicial Code of Conduct doesn’t allow judges or justices to personally solicit or accept campaign contributions. It was their campaigns that took the money.

This isn’t a trivial distinction. Legislative and executive candidates are free to dial for dollars to their heart’s content, as long as they don’t use public resources to do so, or otherwise violate campaign finance laws. Judicial candidates can’t do that, nor can they make in-person or other direct asks for money. The pitch has to come from somebody else who is working on the candidate’s behalf.

From conversations I’ve had with judicial candidates over the years, I’ve gotten the impression that many judges and justices (or would-be jurists) don’t even want to know who’s giving them money at election time. They take care to find people who can run their campaigns for them (e.g. a treasurer and a campaign manager, and maybe a steering committee too) and then let those people handle the money. It is common for friends and family of the candidate to help run a judicial campaign.

There are other special prohibitions that apply to all judicial campaigns as well.

For instance, judicial candidates are not allowed “to solicit contributions for a candidate’s current campaign more than one hundred and twenty days before the date when filing for that office is first permitted and may accept contributions after the election only as permitted by law.” (That’s Rule 4.4, section B, subsection 2).

Read the entirety of Canon 4, and you’ll get a pretty good sense of the higher standards that judicial candidates are held to. These rules are in place specifically to protect the independence, integrity, and impartiality of the judiciary.

As the Canon’s commentary on general considerations explains:

[1] Even when subject to public election, a judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free and appear to be free from political influence and political pressure. This Canon imposes narrowly tailored restrictions upon the political and campaign activities of all judges and judicial candidates, taking into account the various methods of selecting judges.

[2] When a person becomes a judicial candidate, this Canon becomes applicable to his or her conduct.

There is certainly merit to the argument that our current system leads to conflicts of interest, even for judicial candidates. We at NPI would be very much in favor of instituting public financing for judicial elections. This is an idea that’s been proposed in the past in the Legislature, but unfortunately hasn’t been passed into law. Perhaps the 2016 session would be a good time to reconsider the idea.

In the meantime, though, commentators like Westneat ought to keep in mind that conservatives view the Washington Education Association as a major impediment to achieving their agenda, and would like nothing more than to bust the union and prevent teachers from bargaining collectively for professional pay and benefits.

This is why they rarely, if ever, pass up an opportunity to attack the WEA and its locals (especially when a strike is in progress). They’re trying to set the stage for the union’s demise by constantly undermining its reputation, and attempting to discredit its work and advocacy on behalf of its members. Naturally, they love it when a respected voice like The Seattle Times’ Danny Westneat — who has far more credibility than they do — turns one of their arguments into a column.

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