Virtually Yours
The ethics of virtual judicial campaigning are addressed by the Florida Judicial Ethics Advisory Committee
Opinion Number: 2020-09 (Election)
Date of Issue: March 22, 2020
1. May a judicial candidate appear on a computer or TV screen during a video meet and greet or video fundraiser while a donation button appears on the screen?
ANSWER: No; however, a judicial candidate may participate in a virtual campaign event as provided herein.
2. May a judicial candidate appear on a computer monitor for a virtual fundraiser and can a donation button appear if the candidate leaves the screen temporarily, and then the button disappears when the judicial candidate reappears on the screen?
ANSWER: No; however, a judicial candidate may participate in a virtual fundraiser as provided herein.
3. May a committee of responsible persons solicit donations for a judicial candidate during a telephonic campaign event if they are in another room other than the judicial candidate and the judicial candidate temporarily leaves the event during the request?
ANSWER: No; however, a judicial candidate may participate in a telephonic campaign event as provided herein.
4. May a judicial candidate work with a committee of responsible persons to do introductions telephonically and once the judicial candidate leaves the conversation may members of the committee solicit support and/or donations?
ANSWER: No.
A judicial candidate notes that due to the social distancing, self-quarantine requirements, and other requirements in view of the COVID-19 pandemic, it has become necessary to consider new methods of fundraising for judicial campaigns. To that end, guidance is sought regarding the inquiries noted above.
Guidance
in response to Issue 1, a judicial candidate may not appear on a computer or TV screen during a video meet and greet or video fundraiser while a donation button appears on the screen. To opine otherwise would be equivalent to permitting a member of the committee of responsible persons to hold up a donate sign, while the judicial candidate was addressing potential supporters at an in-person campaign event or activity.
In response to Issue 2, a candidate may appear during the virtual fundraiser sponsored by the committee of responsible persons but must leave the virtual meeting before the committee asks for contributions via the donation button. However, the candidate may not come back to the virtual meeting after the ask. Consistent with JEAC Op. 12-14, the candidate should leave the virtual meeting when the solicitation occurs, so as to avoid the impression which a reasonable person may draw that the solicitation was being made by the candidate. The candidates’ departure should be announced when the candidate departs so that it is clear to all concerned that he/she has departed. Such announcement would more clearly eliminate concerns over the appearance of improper soliciting. Simply leaving a virtual meeting is not always that easily noticed by those who continue to participate.
With respect to Issue 3, a candidate may appear during a telephonic campaign event sponsored by the committee of responsible persons but must leave the event before the committee asks for contributions. However, the candidate may not come back to the telephonic campaign event after the ask. Similarly, when the candidate leaves the telephonic meeting, it should be announced so that it is clear to all concerned that he/she has departed.
This Committee has not previously addressed the extent to which a judicial candidate can be personally involved in directing or overseeing the activities of the members of the committee of responsible persons in the solicitation of support3 or donations. In JEAC Op.14-04, this Committee opined:
There is no language in Canon 7 that would prohibit a candidate from being campaign treasurer, directing or managing the campaign (including its website), making campaign expenditures for campaign expenses, or or solicit attorneys for publicly stated support.
With respect to Issue 4, the inquiry posits that candidate might call a prospective contributor, engage in some preliminary conversation, and then turn over the phone to a member of the committee of responsible persons who would make the actual solicitation. The Committee agrees with and adopts the reasoning of the Wisconsin Judicial Conduct Advisory Committee when opining on a similar inquiry:
The Committee believes that such a solicitation method violates the Code of Judicial Conduct because of the candidate’s transparent attempt to avoid a “personal” solicitation. It remains solicitation by the candidate but done with a wink and a nod. The presence of the candidate in the conversation continues. It is as if the candidate is looking over the shoulder of the solicitor.” Wis. Jud. Cond. Adv. Comm, Op. 97-7 (1997)
It should be noted that nothing in Canon 7 prohibits a candidate from advising or giving direction to a member of the committee of responsible persons from whom to solicit contributions, without otherwise being present during the solicitation.
(Mike Frisch)