August 24, 1995
Mr. Lamar Pettus
P.O. Box 1665
Fayetteville, Arkansas 72702
RE: Advisory Opinion # 95-04
Dear Mr. Pettus:
Your letter of July 17, 1995, and the enclosed proposed letters, raises several questions about judicial election campaigns and the Code of Judicial Conduct.
1) Canon 5(C)(2) states that a candidate shall not personally solicit or accept campaign contributions or personally solicit publicly stated support. Accordingly, a candidate may not personally ask a supporter for a contribution. (The canon also states that if funds are personally received, as for example in a contribution by mail to the candidate=s residence, the candidate shall promptly turn it over to the campaign committee).
Similarly, the candidate may not ask a supporter for permission to put the supporter=s name in a newspaper or other form of media advertisement, and may not ask a landowner for permission to place a sign on the property. Such endorsements ally the supporter or landowner with the candidate and potential judge. In order to avoid the appearance of impropriety and to assure the integrity and independence of the judiciary, see Canons 1 & 2, the candidate is not to personally solicit publicly state support of such a type.
A candidate may write a letter, either by bulk mail or individually addressed to all the attorneys in the state or a district or to other members of the electorate. The letter may be mailed at any time. Such a letter may include information about the candidate=s background, the reasons for seeking the office, and the candidate=s plans for judicial office, consistent with Canon 5(A)(3). The candidate may ask for suggestions, advice, the encouragement, the vote and the support of the recipient. Such a letter seeks support in a general sense, but does not seek Apublicly stated support@. Similar requests can also be made by the candidate to potential supporters by telephone or in person.
2) Financial support and Apublicly stated support@ are to be obtained by the campaign committee. Obviously the only method for a candidate, or potential candidate, to put together such a campaign committee is to contact personally potential supporters and ask them to serve on such a committee. The formation of the committee can take place at any time. The candidate has an obligation to ensure that the committee understands the restrictions in judicial campaigns that are not present in other political races.
The purpose of the committee is to isolate the candidate from involvement in fund-raising and public statements of support. The integrity of the courts is not served by the suggestion or the appearance that donors or supporters have special influence with the candidate and potential judge. Ideally a candidate=s only knowledge of supporters and donors would come from public advertisements and media coverage of campaign finance reports.
It is the committee that solicits funds from attorneys and members of the public. As mentioned above, with one minor exception, the candidate cannot even personally accept contributions. Likewise, it is the committee that obtains permission for names of supporters to go into media advertisements, requests landowners to allow signs to be placed, and seeks other forms of Apublicly stated support@. However, the Code does not prohibit a candidate from accepting (as opposed to soliciting) such Apublicly stated support@. This distinction is crucial, for it hinges upon whether the candidate is taking the initiative and seeking such support or merely responding to the supporter=s offer. The former is prohibited; the latter is not.
For example, assume a candidate gives a well received speech and an individual comes forward to Alearn what I can do to help@. The candidate may ethically do any or all of the following: tell the supporter to contact the campaign committee; obtain the name of the supporter and give it to the committee; ask the supporter if he would like a bumper sticker for the car and give him the sticker, ask if she would be willing to have her name appear in an advertisement and give the information to the committee; ask the supporter to call her friends and put in a good word for the candidate; ask if he would be willing to have a yard sign and physically deliver and erect it. The candidate, on the other hand, can never personally ask for a contribution.
The committee can prepare a list of important individuals in the district that the candidate may wish to contact personally. The candidate may then ask for their private support, but cannot solicit publicly stated support. For example, the candidate can ask individuals to send post cards to friends encouraging support of the candidate. The committee may also contact those individuals on behalf of the candidate and ask for publicly stated support. The committee solicits names for the newspaper advertisement, volunteers to make phone calls to the community, and signature on widely distributed post cards.
The committee can seek publicly stated support from an organization, a local bar association, or a well known individual or public figure. The candidate cannot personally solicit such support.
3) The committee can solicit funds and publicly stated support no earlier than 180 days before a primary election. All committee solicitations must cease no later than 45 days after the last contested election in which the candidate appears.
Funds received prior to the 180 day period or after the 45 day period are to be returned to the contributor. A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or others. Canon 5(C)(2). Any campaign fund surplus shall be returned to the contributors or turned over to the state treasurer, and may not be retained for future campaigns. See Advisory Opinions 93-04 and 93-07.
4) Apart from the campaign committee, individuals may seek to assist the judicial campaign by writing letters to friends or by placing advertisements in local media. Canon 5(A)(3)(c) states that a candidate shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing. Accordingly, a candidate could not stand by and do nothing if such an independent supporter were placing a misleading advertisement, see Canon 5(A)(3)(c)(iii). Apart from this limitation, independent supporters may take whatever actions they deem appropriate, and whenever they wish, to aid the campaign of the candidate.
We have reviewed your proposed letters. We conclude that they are consistent with the provision of the Code of Judicial Conduct as outlined above.
Sincerely,
Howard W. Brill
For the Committee
Edwin Alderson and Steele Hays concur.