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.