FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2016-15 (Election)1
Date of Issue: September 2, 2016

ISSUES

1.       May a judicial candidate solicit contributions for an “electioneering communications organization” to be used to support the candidacy of the judicial candidate or oppose the candidacy of the judicial candidate’s opponent?

ANSWER: No.

2.       May a judicial candidate’s committee of responsible persons solicit contributions for an “electioneering communications organization” to be used to support the candidacy of the judicial candidate or oppose the candidacy of the judicial candidate’s opponent? 

ANSWER: No.

3.       May a judicial candidate coordinate the activities of his or her campaign with an “electioneering communications organization”? 

ANSWER: No.

 

FACTS

This inquiry comes from a judicial candidate who has been approached by a group who wishes to support the inquiring judge’s campaign for judicial office through the establishment of an “electioneering communication organization.”  

Because the judicial candidate is aware of the intended actions of the group, the inquiring candidate seeks guidance as to whether, and to what extent, a judicial candidate may engage in fundraising activities for the “electioneering communications organization” and to what extent the judicial candidate can coordinate his or her campaign activities with an “electioneering communication organization.”

An “electioneering communication organization,” or “ECO,” is an entity that engages in political discourse. Florida law defines an electioneering communication organization as a group whose election-related activities are limited to making expenditures for “electioneering communications,” or to accepting contributions for the purpose of making “electioneering communications,” and whose activities would not otherwise require the group to register as a political party or political committee. See § 106.011(9), Fla. Stat. An “electioneering communication organization” is a “political organization” within the meaning of Section 527 of the Internal Revenue Code.

An “electioneering communication” is defined by law as a

communication that is publicly distributed by a television station, radio station, cable television system, satellite system, newspaper, magazine, direct mail, or telephone and that:

1. Refers to or depicts a clearly identified candidate for office without expressly advocating the election or defeat of a candidate but that is susceptible of no reasonable interpretation other than an appeal to vote for or against a specific candidate;

2. Is made within 30 days before a primary or special primary election or 60 days before any other election for the office sought by the candidate; and

3. Is targeted to the relevant electorate in the geographic area the candidate would represent if elected.

See § 106.011(8)(a), Fla. Stat.

Under Florida law there is no limit on the amount of money that any individual or other entity may contribute to an ECO. An “electioneering communication” is not “a contribution to or on behalf of any candidate.”  See § 106.011(8)(c), Fla. Stat. Nor is an “electioneering communication” an “independent expenditure.” See § 106.011(8)(d), Fla. Stat.

Pursuant to Florida law, office holders and candidates may solicit, cause to be solicited, or accept contributions on behalf of an “electioneering communications organization,” although certain office holders and candidates must file a “Statement of Solicitation” with the Florida Division of Elections and make other additional periodic disclosures if they do so. See § 106.0701, Fla. Stat.

  
DISCUSSION

Canon 7A(1)(e) provides that a judicial candidate “shall not: . . . solicit funds for, pay an assessment to or make a contribution to a political organization or candidate, or purchase tickets for political party dinners or other functions.” (emphasis added).

An “electioneering communication organization” is political organization. Thus, a judicial candidate is prohibited from soliciting funds for an “electioneering communication organization.”

Canons 7A(3)(c) and (d) likewise prohibit employees and agents of a judicial candidate from doing what the candidate is prohibited from doing under the Canons. Specifically:

A candidate for judicial office: . . .

(c) shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidate's direction and control from doing on the candidate's behalf what the candidate is prohibited from doing under the Sections of this Canon;

(d) except to the extent permitted by Section 7C(1), shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon . . . .

Canon 7C(1) permits judicial candidates to “establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy.” The exception set forth in Canon 7C(1) is narrow in scope: It does not permit a “committee of responsible persons” to solicit funds for another political organization to either support the judicial candidate or oppose the judicial candidate’s election opponent.

Thus, a judicial candidate may not solicit funds for or personally contribute to an “electioneering communication organization,” nor may employees or agents of the candidate’s campaign, including a “committee of responsible persons,” solicit contributions to or funds for an “electioneering communication organization.”

As to Question 3, a majority of the Committee concludes that a judicial candidate may not coordinate the activities of his or her campaign with an electioneering communication organization. Coordination between a judicial candidate and an electioneering communication organization potentially implicates one or more of the Canons, including independence of the judiciary (Canon 1), appearances of impropriety (Canon 2), performing judicial duties impartially (Canon 3), and minimizing the risk of conflict with judicial duties (Canon 5).   

A minority of the Committee notes that nothing in the Code of Judicial Conduct expressly prohibits a judicial candidate from coordinating the activities of his or her campaign with that of an electioneering communication organization. Notwithstanding the lack of an express prohibition, the minority has concerns about the propriety of a judicial candidate coordinating activities of his or her campaign with that of a political organization over which he or she has no control or supervision. Thus, the minority would opine that if a judicial candidate coordinates the activities of his or her campaign with an “electioneering communications organization,” any “electioneering communication” resulting from such coordination must otherwise comply with the requirements of Canon 7A of the Code of Judicial Conduct with respect to political advertising.

 

REFERENCES

Fla. Stat. sections 106.011(8)(a),(c),(d), 106.011(9), & 106.0701.
26 U.S.C. section 527.
Fla. Code Jud. Conduct, Canons 1, 2, 3, 5, 7A, 7A(1)(e), 7A(3)(c),(d) & 7C(1).

_____________


The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate.

Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission, and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions of the Committee. See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith.  See id.

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside.  The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with whether the proposed conduct violates a provision of that Code.

For further information, contact Judge Spencer D. Levine, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, FL 33401.

Participating Members:
Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Lisa Davidson, Judge Miguel de la O, Judge James A. Edwards, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge K. Douglas Henderson, Patricia E. Lowry, Esquire, Judge Michael Raiden.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator

 

 

 

1. The Judicial Ethics Advisory Committee has appointed an Election Practices Subcommittee. The purpose of this subcommittee is to give immediate responses to campaign questions in instances where the normal Committee procedure would not provide a response in time to be useful to the inquiring candidate or judge. Opinions designated with the “(Election)” notation are opinions of the Election Practices Subcommittee of the Judicial Ethics Advisory Committee, and have the same authority as an opinion of the whole Committee.