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The Tennessee Rules for judicial election campaign conduct are considered an excellent model for Supreme Court rules in jurisdictions that elect judges. In early December, the Tennessee Supreme Court amended the provisions of the Code of Judicial Conduct regarding judges and judicial candidates’ election campaign conduct. The recent changes stem from suggestions made by a joint committee of the Tennessee Judicial Conference and the Tennessee Trial Judges Association in its “Report to the Tennessee Judicial Conference on Revisions to the Tennessee Code of Judicial Conduct.”

The Tennessee Bar Association also submitted comments on the rule changes in favor of lifting the prohibition on judicial candidates endorsing or opposing other candidates for judicial office. The ABA Model Rule of Judicial Conduct includes this prohibition, but the Tennessee Bar Association felt the restriction impeded judges from offering their unique insights into the qualifications of judicial candidates. Judges are uniquely positioned to view their colleagues’ suitability to the bench, but allowing them to comment on their colleagues’ performance as judge runs the risk of politicizing judicial relations without necessarily improving the quality of information available to the public. Independent, public review of judicial performance, based upon objective standards of professionalism, remains the best means of evaluating judicial candidates.

The Supreme Court did not adopt all of the changes proposed in the Tennessee Judicial Conference and the Tennessee Trial Judges Association Report, but has amended the rule. Under the new rule, judges and judicial candidates may:

• Endorse or oppose judges or judicial candidates in a partisan, nonpartisan, or retention election for judicial office.
• Speak on behalf of his or her candidacy through any medium, including but not limited to advertisements, websites, or other campaign literature.
• Seek, accept, or use endorsements from any person or organization.
• Publicly endorse or oppose judges or judicial candidates in a partisan, nonpartisan, or retention election for any judicial office.
• Group themselves into slates or other alliances to conduct their campaigns more effectively, including by establishing joint campaign committees.
• Solicit funds for a political organization or candidate for public office, only from a member of the judge’s family or a member of the judicial candidate’s family.
• Begin some campaign activities up to one year prior to the election.

While the rules still prohibit many campaign activities, such as solicitation of funds from non-family members or use of court staff, facilities and resources in their campaigns, the new rules permit a wide range of new campaign behaviors by judges and judicial candidates. It is our view these rule changes represent a significant re-thinking of judicial campaign behavior and a move in the wrong direction.

Illinois Supreme Court Rule 67(B)(2) prohibits judges and judicial candidates from personally soliciting and accepting campaign contributions. Rule 67(B)(1) prohibits them from identifying as a member of a political party, appearing in advertisements (in any media) in support of their campaign, and publicly endorsing or opposing candidates in the election in which they themselves are running. These activities are permissible under the new Tennessee Rules.

We find the Tennessee Rule changes permitting judges to endorse or oppose other candidates and to begin fundraising a year in advance of the election particularly troubling. These changes explicitly position judicial campaigns as identical to campaigns for politically-held public office.  It is our view that the culture of influence cultivated in seeking and offering personal endorsements threatens judicial impartiality and independence. An increased amount of time devoted to campaign fundraising may distract sitting judges running for retention from their judicial duties [add something to the effect of: at a time when burgeoning dockets are already straining judges’ ability to do perform optimally as expected and owed the public and litigants).

An editorial in the Knoxville News Sentinel seemed conflicted over the changes noting that “[t]he changes reflect the new reality that Tennessee’s judicial elections are becoming more like other political contests”, while calling the changes “an unfortunate necessity.”

At Chicago Appleseed, we believe it is necessary that the rules governing judicial conduct in elections be more restrictive in order to reflect the increased involvement of money and nonjudicial politics in the races. There is no question that judicial elections are changing and attracting both more money and more lobbying by political action committees interested less in judicial performance and more in the specific outcomes of particular cases.

It is increasingly obvious that judicial candidates are faced with an increasingly expensive and politically-charged campaign season. However, the solution does not lie with loosening the restrictions on judicial candidates but improving the regulation of special interest money and the involvement of national political action groups in local judicial campaigns.