Keeping Mud off the Bench: the First Amendment and Regulation of Candidates’ False or Misleading Statements in Judicial Elections

In the last fifty years, perhaps no facet of American constitutional democracy has changed more than campaigns for judicial office. Judicial elections long stood in sharp contrast to elections for executive, legislative, or administrative office. In keeping with the judicial role of impartial adjudicator, judicial candidates historically avoided political controversy and campaigned on “polite promises of integrity.” During the late twentieth century, judicial elections were transformed from their more humble, less contentious beginnings into elections virtually indistinguishable, in both financial scope and campaign conduct, from other political campaigns. Campaign donations and expenditures in judicial elections have risen at exponential rates across the country. In the Los Angeles area, campaign expenditures in the average superior court race increased twenty-two fold from 1976 to 1994. In 1980, a campaign for an Ohio Supreme Court seat cost $100,000; in 2000, a campaign for a seat on the same court cost an estimated $9 million. In Michigan, the cam-