[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

concurring in the judgment. . . .
. . . I would not apply exacting scrutiny to a State’s endeavor sensibly to “differentiate
elections for political office . . . , from elections designed to select those whose office it is to
administer justice without respect to persons,” Republican Party v. White, 536 U.S. at 805.
. . . The Court’s recent campaign-finance decisions, trained on political actors, should
not hold sway for judicial elections. In Citizens United v. Federal Election Comm’n, 558
U.S. 310 (2010), the Court invalidated a campaign-finance restriction designed to check
the outsized influence of monied interests in politics. . . . A plurality of the Court
responded similarly in McCutcheon v. Federal Election Comm’n, 134 S.Ct. 1434 (2014),
when it addressed the prospect that wealthy donors would have ready access to, and could
therefore influence, elected policymakers. “[A] central feature of democracy,” the plurality
maintained, is “that constituents support candidates who share their beliefs and interests,
and candidates who are elected can be expected to be responsive to those concerns.” . . .
States may therefore impose different campaign-finance rules for judicial elections than
for political elections. Experience illustrates why States may wish to do so. When the
political campaign-finance apparatus is applied to judicial elections, the distinction of
judges from politicians dims. Donors, who gain audience and influence through
contributions to political campaigns, anticipate that investment in campaigns for judicial
office will yield similar returns. Elected judges understand this dynamic. As Ohio Supreme
Court Justice Paul Pfeifer put it: “Whether they succeed or not,” campaign contributors
“mean to be buying a vote.” . . .
Justice KENNEDY, dissenting.
. . . While any number of troubling consequences will follow from the Court’s ruling, a
simple example can suffice to illustrate the dead weight its decision now ties to public
debate. Assume a judge retires, and two honest lawyers, Doe and Roe, seek the vacant
position. Doe is a respected, prominent lawyer who has been active in the community and
is well known to business and civic leaders. Roe, a lawyer of extraordinary ability and high
ethical standards, keeps a low profile. As soon as Doe announces his or her candidacy, a
campaign committee organizes of its own accord and begins raising funds. But few know or
hear about Roe’s potential candidacy, and no one with resources or connections is available
to assist in raising the funds necessary for even a modest plan to speak to the electorate.
Today the Court says the State can censor Roe’s speech, imposing a gag on his or her
request for funds, no matter how close Roe is to the potential benefactor or donor. The
result is that Roe’s personal freedom, the right of speech, is cut off by the State. . . .
If there is concern about principled, decent, and thoughtful discourse in election
campaigns, the First Amendment provides the answer. That answer is more speech. For
example, candidates might themselves agree to appoint members of a panel charged with
periodic evaluation of campaign statements, candor, and fairness. Those evaluations could
be made public. And any number of private organizations or voter groups seeking to
evaluate campaign rhetoric could do the same.
Modern communication technologies afford voters and candidates an unparalleled
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