This is the second case in as many months dealing with Montana’s campaign-finance laws.
In Montana, judges are picked by popular election. Judicial candidates can’t seek or use partisan political endorsements in their campaigns. In 2014, Sanders County judicial candidate Mark French received the endorsement of the Sanders County Republican Committee as well as endorsements from two Republican officeholders. French refrained from using these endorsements, knowing they were prohibited under Montana law. He ended up losing the election. French plans to pursue the seat again in 2018, and so he challenged the prohibition in court, arguing that the ban infringes on his First Amendment rights.
The state of Montana argued that their rule is designed to ensure the public’s faith in an impartial judiciary. Seeking and receiving partisan endorsements, so the argument goes, may create the public perception that judges will favor certain political parties or politicians over others.
French argued that the rule was underinclusive in certain ways, overinclusive in others, and was not sufficiently “tailored” to Montana’s interests. The primary underinclusiveness argument that French made was that the rule does not limit judicial candidates from receiving endorsements from interest groups, corporations, and other organizations—groups that might actually appear in court before a later-elected judge. But the Supreme Court has held that the First Amendment has no “underinclusiveness limitation” and that a law may target only the most pressing concerns (i.e., political parties rather than corporations). In French’s case, the Ninth Circuit further found that even though the Montana law permits campaign contributions from partisan organizations, that does not render it underinclusive because monetary contributions are far less public and therefore pose a smaller threat to public perception of impartiality.
French also argued that the rule was overinclusive because it prohibited a candidate’s campaign committee from seeking and using endorsements. The Ninth Circuit thought otherwise—as a candidate’s committee using endorsements would threaten the perception of impartiality just as much as a candidate doing so. Finally French argued that the rule is not “narrowly tailored” due to Montana’s lack of evidence that endorsements cause harm and because other states do allow (and even require, in some cases) political endorsements for judicial candidates. The Court found that public confidence in an impartial judiciary, however, does not require that sort of proof. The Court found that the Montana law struck an acceptable balance between a candidate’s speech and protecting an independent judiciary. Montana has a compelling interest in protecting public perception of its judges and their independence, said the Court, and it found the Montana law constitutional.
Case: French v. Jones, No. 15-35990 (9th Cir. Dec. 7, 2017) (opinion here)