How Bad Is It? Prior Restraint Bad: Judicial Election Advertising After Citizens United v. FEC

The nature of election advertising was altered by the Supreme Court’s decision in
Citizens United v. FEC. Although significant attention has been directed at the
changes to the non-candidate political advertising by outside groups in federal
elections, one area where issue advertising unleashed by Citizens United has
dramatically altered the traditional election process has been in state level
judicial elections. Statewide judicial races, especially in states that hold
nominally “non-partisan” judicial elections, have been attracting increasing
attention since 2011 and have included campaigns where a single outside group
has outspent both of the legally qualified candidates combined. Recently, in
Arkansas, advertising by the Judicial Crisis Network resulted in a First
Amendment legal dispute over a prior restraint placed on ads the group was
running that required the entire state court to recuse themselves. This paper
explores judicial advertising in six states in 2016 against the backdrop of a
potentially unresolvable constitutional issue caused by the content of political
advertising and suggests that even the U.S Supreme Court would have been
unable to resolve the case.