NPI's Cascadia Advocate

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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