Rules are for all
Judges shouldn’t break them
It’s good to see the Arkansas Democrat-Gazette reporting on the partisan campaigning that took place in last week’s election for a judicial seat on Arkansas’ Supreme Court. Unfortunately, it’s too little, too late. Arkansas voters have elected to our highest court a judge who breaks the rules.
Arkansas Code of Judicial Conduct Rule 4.1 applies to judicial candidates, and Rule 4.1(A)(7) states that a judicial candidate shall not “seek, accept, or use endorsements from a political organization or an elected official who was elected in a partisan election … .”
The Barbara Webb for Supreme Court Committee sent a mailer several weeks before the election.
Maybe you got one—I received a couple. On one side is a photo of Governor Asa Hutchinson next to a block quotation in large letters: “I have known Barbara Womack Webb for many years and observed her commitment to public service, her experience as prosecuting attorney … I am confident that her extensive courtroom experience has well equipped her to serve as Circuit Judge for the 22nd Judicial Circuit.”
The governor’s quote doesn’t use the word “endorsement.” But how are voters meant to see his powerfully positive words about Barbara Webb?
They’re meant to see them as an endorsement.
The endorsement was made by the governor, who is a partisan elected official. Should it matter that the endorsement is not for the position of Supreme Court justice, but for a position Webb was appointed to several years ago? No. For purposes of the state’s judicial rule, that’s irrelevant. It’s an endorsement and should not have appeared on her campaign materials.
Rule 4.1(B) states that a judicial candidate “shall take reasonable measures to ensure that other persons do not undertake, on behalf of the judge or judicial candidate, any activities prohibited under paragraph (A).” Keep in mind that Webb could not be more closely connected to the Republican party—her husband is the chair of the Arkansas Republican Party.
Arkansas law requires judges to run as nonpartisan candidates. The philosophy behind this rule is that judges make decisions based on the law and the facts of each case, rather than on what voters want. Therefore, judicial candidates “must, to the greatest extent possible, be free and appear to be free from political influence and political pressure.”
What, then, should we make of the fact that Webb apparently accepted campaign contributions from multiple partisan political action committees from across Arkansas? That her campaign accepted in-kind contributions from Republican groups? Those don’t look like the actions of a nonpartisan candidate.
By including an endorsement from the governor in her campaign advertising and accepting partisan contributions, Webb bent the rules’ interpretation, at least when applying them to herself and her campaign.
Is this the kind of a judge we want on our state’s highest court? Someone who distorts rules? Should someone who doesn’t obey rules be allowed to have the job of enforcing rules?
That’s where we are today.
We at Indivisible Little Rock and Central Arkansas were pleased to host Webb, along with her opponent, Judge Chip Welch, at our February Judicial Candidates Forum, prior to the March 3 election. Being a progressive activist group, we took pains to promise all candidates that our forum and voter guides would be impartial and useful to all voters, no matter their political leanings. We believe Webb could agree that we followed through on that promise. We acted in good faith.
Can a judicial candidate who accepts money from partisan groups say in good faith that they are free from “political influence”?
Ethics complaints have been filed against the Webb campaign to the Judicial Discipline and Disability Commission. But that’s too late for the 2020 Supreme Court election.
Arkansas should reform the rules such that the commission meets on an emergency basis during election season. That would give the commission time to act, in advance of the election, should a candidate violate the rules. We suggest requiring candidates who break rules to immediately use the same means to communicate how they broke them. For example, if a campaign billboard violates rules, then a candidate should be required to pay for a new billboard stating that the candidate has violated the rules. Or in Webb’s case, she should have been required to send out another mailer at her expense stating that she violated the rules with regard to endorsements. That’s in addition to a fine, and possible suspension after being elected.
The point is to ensure candidates have the necessary incentives to follow the rules. That such measures are necessary in judicial races is a sad irony.