Most people know that judges are restricted in their First Amendment rights to freedom of speech. Judges and candidates for judicial office are unable to speak to policy and potential cases that may come before them in court. However, this is not the only prohibition on their First Amendment rights.
Once an individual declares candidacy for a judicial office, they are barred from making personal contributions to any other candidate for office. While there are a few exceptions to this rule (namely, joint judicial campaigns and buying tickets for campaign events), a judicial candidate cannot make a general contribution to another candidate’s campaign committee.
This rule is likely lesser known, even among those engaged in the state’s elections process, because it is not found in the statutes passed by the legislature, nor can it be found in the state board of elections campaign finance manual. Instead, these rules for judicial candidates are found in the state’s judicial code of conduct. General Statute 7A-10.1 establishes that the state Supreme Court has the power to “prescribe standards of judicial conduct for the guidance of all justices and judges of the General Court of Justice.” This allows the state’s highest court the authority to determine the acceptable conduct of judges in court and acceptable political activity, including campaigning for office.
The Judicial Standards Commission interprets and applies these rules through memorandums, determining the extent of these broader judicial canons. The most recent memorandum, published in 2022, primarily discusses Canon 7, which governs what political activities a judge or judicial candidate can or cannot engage in. Canon 7(B)(3) bars judicial candidates from contributing to candidate committees other than their own:
[A judge or a candidate may] identify himself/herself as a member of a political party and make financial contributions to a political party or organization; provided, however, that he/she may not personally make financial contributions or loans to any individual seeking election to public office (other than himself/herself) except as part of a joint judicial campaign as permitted in subsection B(2);
While not outright stated in Canon 7(B)(3), this ban on contributions to other campaigns applies to a judicial candidate’s campaign committee. The Judicial Standards Commission came to this conclusion based on the State Supreme Court decision in In re Write, 313 N.C. 495(1985). That case determined that a candidate campaign committee is not a “political organization” but an “alter ego of the candidate.”
While this covers one obvious loophole that a textual reading of Canon 7 would have allowed, there are still issues with the current rules.
A Loophole in Judicial Canon Reduces Its Effectiveness
A section titled “Limitations of Proceedings” was added to North Carolina’s Judicial Code of Conduct in 2003. While publication records indicate a change to this provision occurred in the 2006 iteration of the Judicial Code of Conduct, the language has not changed since its inception. This section limits all violations of Canon 7 to those “commenced within three months of the act or omission allegedly giving rise to the violation.” All other breaches of judicial canon have a larger window of three years before a violation is no longer eligible to be reviewed by the committee. Because the language states precisely the “act or omission,” a textual reading of this provision runs into issues with reporting timelines of campaign committees.
The most likely way to prove a judge or judicial candidate improperly contributed to a campaign committee is through campaign finance reports. Candidate reports with the State Board of Elections occur in six-month intervals in off years and quarterly during election years. Interpreting the canon in a textual manner means there are pockets of time where a judicial candidate or judge may contribute to a campaign and the commission would be unable to punish them due to the statute of limitations having passed.
Reaching out to staff at the Judicial Standards Commission to see if they had interpreted this provision as the clock starting once the donation is made or once a report is submitted did not provide any clarity. Staff with the commission indicated that this statute does leave room for interpretation on when the clock starts but was “unable to answer this opinion-based question to individuals that were not current sitting judges or judicial candidates.”
Closing the Loophole
While the quickest and easiest way to close this loophole would be for the commission to simply interpret that the clock starts when a report is submitted, I think that would be a band-aid for a more significant problem.
The narrow three-month window for violating Canon 7 requires more constant vigilance than for other candidates. The State Board of Elections can initiate investigations of violations of campaign finance law, such as illegal contributions, as far back as four years from the earliest recorded violation being made public. Other violations of election law are subject to the statute of limitations for misdemeanor crimes (maximum two years) and felony charges (no statute of limitations).
The best solution is either removing the special rule for Canon 7 violations or mirroring the board of elections rules and requiring investigations to be started within four years. In either scenario, the Judicial Standards Commission should still make the changes that the clock starts when a campaign finance report is made public.
Any changes to the Judicial Canon, including the section on “Limitations of Proceedings,” must be made by the State Supreme Court.
The judiciary’s integrity is a vital part of our country and state. While we typically think those who run for judicial office are highly familiar with these rules and laws, some candidates have broken them and could potentially not receive punishment, which is concerning. We should not have weak regulations for those who run for such important positions.
