The United States Courts have quietly imposed a new ban on campaign donations and partisan political activity by court employees and administrative staff. The new rule went into effect March 1.
An Administrative Office spokesman told the ABA Journal that only “bright-line” partisan activity–not issue advocacy–is prohibited. Moreover, court employees may still donate time and energy to charities, religious organizations, and professional organizations.
This is a sensitive area, which requires a carefully balanced policy. The courts are surely motivated by the need to appear politically neutral and unbiased, a concern that applies to court employees as much as judges. But the “bright line” that the Administrative Office suggests is quickly likely to become blurry in practice. Is a donation to an advocacy group like the National Rifle Association or Planned Parenthood a partisan activity within the meaning of the new rule? Such organizations are so closely tied in the public mind to a particular political party that they can raise the same specter of partisanship even if the organizations themselves are technically nonpartisan.
There are also First Amendment issues at stake. Federal judges are bound by a Code of Judicial Conduct, which limits their ability to engage in partisan political activity as a matter of professional ethics. But the Supreme Court has concluded that notwithstanding prevailing codes of conduct, state judges retain First Amendment rights to speak on political matters. Court employees (who are not bound by a judicial code) would seem to have an even stronger argument for First Amendment freedoms.
The Administrative Office is keeping the new policy largely internal for now, and has said that it will address individual questions as they come up. I predict that this is likely to turn into a headache for the AO going forward.