TN Supreme Court reverses course on donations by judges to campaigns

Written by

Bobby Allyn and Sarah Kingsbury

In January, the Tennessee Supreme Court adopted an overhauled code of conduct that applied to judges across the state, intended to draw a clear line between courts and politics.

But days before the new conflict-of-interest rules were to take effect on July 1, the Court issued a little-noticed order reversing one of its reforms: judges in the state will be allowed to make political contributions — despite being expressly banned in the original, widely-celebrated changes.

Most of the ethics reforms have remained intact, including specific rules about when a judge should step down from a case due to campaign contributions or other activities that may undermine fairness. In addition, judges cannot endorse candidates.
Nonetheless, some legal experts say the change of direction is questionable.

“The better practice is for judges to err on the side of staying out of politics,” said Adam Skaggs, attorney with New York University’s Brennan Center for Justice. “Judges would be well-served to avoid injecting themselves in heated partisan debates.”

At least 27 Tennessee judges have donated to political campaigns this year, according to the Davidson County Election Commission. Nearly all the donations were under $1,000.There were a few exceptions, however.

Out-going General Sessions Judge Mike Jameson gave the largest sum, a $1,400 contribution to his former colleague Phillip North's bid for state Senate. And Judge John McClarty of the Court of Appeals for East Tennessee contributed $1,000 to the re-election campaign of Representative JoAnne Favors of Chattanooga.

The change of course was prompted by letters to the high court from three judges, two from the Knoxville area and one from Lafayette, who disputed the rule.
Among them, Judge David Duggan of the Fifth District argued in his letter to the court that prohibiting donations infringes on judges’ free speech.

“I think judges should self-regulate self-restrict, but I don’t see how making a political contribution impacts my way of hearing a case,” he said in a phone interview.
The court considered the judges’ letters as a petition, which triggered a survey of some 180 judges around the state. Nearly 63 percent of respondents said they favored no limits on campaign contributions beyond those that apply to the public.
The Tennessee Bar Association supported lifting the ban.

“The courts have held that money is speech,” said Allan Ramsaur, who leads the association. Unless there is a compelling reason to override First Amendment rights, he added, donation restrictions “are pretty much frowned upon,” in addition to being vulnerable to legal attacks.

Yet Dick Williams of Common Cause Tennessee, which advocates for government openess, said “it’s a step back from what could have been a significant step forward.”
“Preventing endorsement is meaningless, because a contribution is a de facto endorsement,” Williams said. “It signals that the court bowed to the interest of those who want to contribute.”

Sen. Mae Beavers, a champion of greater judicial transparency, said the state’s recusal reform and other ethics revisions — the first changes to the code in more than two decades — should be applauded.

In other states where judicial donation rules were amended, lawsuits swiftly followed, according to Skaggs of the Brennan Center. There has been no indication that a legal challenge is looming in Tennessee.

Skaggs said some states are trying to harness the momentum around the U.S. Supreme Court’s Citizens United ruling, which gave corporations and unions the right to contribute to campaigns without limits, to deregulate judicial rules. “If they succeed, it is going to create courts that are staffed with people indistinguishable from other political groups, which would be a great disservice to the public.”