Can Tennessee constitutionally ban session-time fundraising by sitting legislators while leaving non-incumbent challengers free to raise money?

Plain-English summary

Representative Stacey Campfield asked the AG three questions: (1) is it constitutional for Tennessee to bar incumbent legislators from raising campaign funds during the legislative session while leaving non-incumbent challengers free to raise money? (2) who would have standing to challenge the Tennessee Plan, the state's appointment-and-retention system for appellate judges? and (3) what part of the Tennessee Constitution authorizes the legislature to fill judicial vacancies by appointment instead of election?

On Question 1, the AG explained the history. The Campaign Contribution Limits Act of 1995 originally banned session-time fundraising by all candidates, incumbent and challenger. In 1996, the federal district court in Emison v. Catalano struck the ban as applied to non-incumbent candidates: under Buckley-line First Amendment doctrine, a session-time fundraising restriction must use the least restrictive means, and applying it to non-incumbents fails because non-incumbents can not engage in the corrupting quid pro quo that incumbents can. After Emison, the legislature amended the statute in 1998 to apply only to incumbents. The AG's office had previously concluded (Op. 02-062) that the incumbent-only version is constitutionally defensible: it is narrowly tailored to a compelling state interest in preventing corruption or its appearance, and the disparate treatment of incumbents and non-incumbents is justified by the structural difference in their power to influence the legislative process.

On Question 2, standing in Tennessee requires (1) a distinct and palpable injury, (2) traceable to the challenged conduct, (3) redressable by the court. Whether any specific party has standing to challenge the Tennessee Plan turns on individual circumstances. The opinion catalogues examples: in State ex rel. Higgins v. Dunn (1973), the issue arose in a quo warranto case between two persons claiming the same Supreme Court seat (one by appointment, one by write-in election), and standing was clear. By contrast, in Johnson v. Bredesen (6th Cir. 2009), plaintiffs whose only claim was status as registered voters lacked standing. State ex rel. Hooker v. Thompson (Tenn. 1996) held that even candidates lacked standing on their facts. The bottom line: there is no general "any voter" standing to challenge the Tennessee Plan; a specific concrete injury matters.

On Question 3, the controlling case is State ex rel. Higgins v. Dunn (Tenn. 1973), which held that Article VII, § 4 of the Tennessee Constitution authorizes the legislature to provide for filling judicial vacancies by appointment. Article VI, §§ 3 and 4 say appellate and trial judges are elected, but they say nothing about how to fill vacancies. Article VII, § 7 prohibits special elections to fill judicial vacancies and pushes any election to the next biennial cycle. Reading these together, the Supreme Court found the legislature's appointment scheme constitutional.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

In particular, Tennessee voters approved a constitutional amendment in November 2014 that explicitly addresses appellate judge selection (the so-called "Tennessee Plan" was effectively constitutionalized in modified form). Anyone researching this area today should look at Article VI, § 3 as amended, not just the framework discussed in this 2010 opinion.

Common questions

Q: Why does Tennessee restrict fundraising during the legislative session at all?
A: To prevent corruption or the appearance of corruption. The concern is that contributions made while the legislature is voting create the impression that legislative votes are being purchased. The U.S. Supreme Court has long recognized prevention of corruption (or its appearance) as a compelling state interest that can justify some campaign-finance restrictions.

Q: Why doesn't the ban apply to non-incumbent challengers?
A: Because Emison v. Catalano (1996) struck it as applied to challengers under the First Amendment. The court reasoned that non-incumbents cannot offer the corrupting quid pro quo (a vote on legislation), so banning their session-time fundraising fails the "least restrictive means" requirement. They have no legislative power to sell.

Q: Doesn't applying the ban only to incumbents discriminate against incumbents?
A: That argument was considered. The AG's view is that incumbents and non-incumbents are not similarly situated for First Amendment purposes; only incumbents have legislative power to be corrupted. The disparate treatment is rationally tied to the differential corruption risk, so it survives review.

Q: What is the "Tennessee Plan"?
A: A merit-selection-and-retention system codified at Tenn. Code Ann. §§ 17-9-101 et seq. (as it stood in 2010). For appellate judges, the governor appointed from a slate prepared by a judicial nominating commission, and the appointee then faced periodic yes/no retention elections. Critics argued it conflicts with Article VI's provision that judges shall be "elected by the qualified voters."

Q: Who can sue to challenge the Tennessee Plan?
A: Anyone with concrete injury traceable to the Plan and redressable by a court. The opinion's examples: a person actually competing for the seat (Higgins v. Dunn, where two people claimed the same Supreme Court seat; standing was clear); a candidate excluded from the process (Hooker, where standing failed on the facts). Pure voter status, with no more, is not enough (Johnson v. Bredesen).

Q: What does Article VII, § 4 actually say?
A: "The election of all officers, and the filling of all vacancies not otherwise directed or provided by this Constitution, shall be made in such manner as the Legislature shall direct." The Tennessee Supreme Court read this in Higgins v. Dunn as authorizing legislative appointment for judicial vacancies, since the constitution itself does not specify a method for filling them.

Q: Why is the standing question hard?
A: Because Tennessee follows the rule that citizens and taxpayers cannot challenge governmental action unless they show special injury beyond what other citizens suffer (Patten v. City of Chattanooga, 1901). Generalized grievances are out. The Plan affects all voters equally in some sense, but a court will require something more concrete from any individual plaintiff.

Q: Does this opinion mean the Tennessee Plan was constitutional?
A: It does not directly address that question. The AG only addressed standing (who could sue) and the related point that appointment of judicial vacancies has constitutional support under Higgins v. Dunn. Whether the Plan itself was constitutional was not the question asked, and the AG did not opine on the merits.

Background and statutory framework

Tennessee's Campaign Contribution Limits Act of 1995 imposed sweeping restrictions on session-time political fundraising. The blackout provision, Tenn. Code Ann. § 2-10-310(a)(1), originally barred any candidate (incumbent or non-incumbent) and any candidate's campaign committee from soliciting or accepting contributions for any caucus, member, or candidate during the legislative session. The AG had warned even then (Op. 95-58) that applying the ban to non-incumbents would not survive a First Amendment challenge under the least-restrictive-means requirement.

The federal district court agreed in Emison v. Catalano, 951 F.Supp. 714 (E.D. Tenn. 1996). Drawing on State v. Dodd (Fla. 1990) and the Buckley line, the court held that even an admittedly compelling interest in preventing corruption could not justify banning fundraising by candidates who had no legislative office to sell. Non-incumbents thus retained First Amendment freedom to raise money during session.

In 1998, the legislature amended § 2-10-310(a) to apply only to incumbents. The narrowed version has been the subject of several AG opinions, most importantly Op. 02-062 (May 16, 2002), which concluded the incumbent-only ban is constitutionally defensible: incumbents have a corrupting capacity that non-incumbents do not, the prevention of corruption (or its appearance) during session is a compelling state interest, and the limited scope (only sitting legislators, only during session, only as to fundraising) is narrowly tailored. The 2010 opinion confirms and applies that earlier conclusion.

Tenn. Code Ann. § 3-6-304(i) (formerly § 3-6-108(i), recodified by the Comprehensive Governmental Ethics Act of 2006) imposes a parallel ban on contributions by lobbyists and lobbyist employers to legislators during session. The same analysis applies: it is defensible against an equal-protection attack from incumbents because incumbents and non-incumbents differ in legislative power.

On standing to challenge the Tennessee Plan, Tennessee follows a three-part test (distinct and palpable injury, traced to the conduct, redressed by the remedy) drawn from federal doctrine (ACLU of Tennessee v. Darnell, 195 S.W.3d 612 (Tenn. 2006); Lugo v. Miller, 620 F.2d 823 (6th Cir. 1981)). It also follows the long-standing Tennessee rule that citizens and taxpayers lack standing to enjoin governmental action absent special injury (Patten v. City of Chattanooga, 1901). Whether any specific challenger has standing turns on the facts. The illustrative cases:

• State ex rel. Higgins v. Dunn (Tenn. 1973): quo warranto between two people claiming the same Supreme Court seat; standing clear because each had a concrete claim to the office.
• Johnson v. Bredesen (6th Cir. 2009): registered voters as such lacked standing; the injury was generalized.
• State ex rel. Hooker v. Thompson (Tenn. 1996): candidates lacked standing on their facts.

On the constitutionality of judicial-vacancy appointments, Higgins v. Dunn read Article VII, § 4 (legislature directs how vacancies are filled where the constitution does not specify), Article VI, §§ 3 and 4 (appellate and trial judges elected), and Article VII, § 7 (no special elections; vacancies filled at next biennial election) together to permit legislative appointment as a stopgap until the next regular election. The 1973 reasoning has been the foundation for every subsequent challenge to Tennessee's judicial-selection mechanics.

Citations and references

Statutes and constitutional provisions:

• Tenn. Code Ann. § 2-10-310(a)(1) (legislative session fundraising blackout)
• Tenn. Code Ann. § 3-6-304(i) (lobbyist session-time contribution ban; previously § 3-6-108(i))
• Tenn. Code Ann. §§ 17-9-101 et seq. (Tennessee Plan)
• Tenn. Const. art. VI, §§ 3, 4 (election of appellate and trial judges)
• Tenn. Const. art. VII, § 4 (legislature directs how vacancies are filled)
• Tenn. Const. art. VII, § 7 (no special judicial elections)

Cases:

• Emison v. Catalano, 951 F.Supp. 714 (E.D. Tenn. 1996), federal district court (struck blackout as to non-incumbents)
• State v. Dodd, 561 So.2d 263 (Fla. 1990), Florida Supreme Court
• ACLU of Tennessee v. Darnell, 195 S.W.3d 612 (Tenn. 2006), Tennessee Supreme Court (standing doctrine)
• Metropolitan Air Research Testing Auth. v. Metropolitan Gov't, 842 S.W.2d 611 (Tenn. Ct. App. 1992), Tennessee Court of Appeals
• Valley Forge Christian College v. Americans United, 454 U.S. 464 (1982), U.S. Supreme Court
• Lugo v. Miller, 620 F.2d 823 (6th Cir. 1981), federal court of appeals
• Tennessee Envtl. Council v. Solid Waste Disposal Control Bd., 852 S.W.2d 893 (Tenn. Ct. App. 1992), Tennessee Court of Appeals
• Morristown Emergency & Rescue Squad, Inc. v. Volunteer Dev. Co., 793 S.W.2d 262 (Tenn. Ct. App. 1990), Tennessee Court of Appeals
• Patten v. City of Chattanooga, 108 Tenn. 197, 65 S.W. 414 (1901), Tennessee Supreme Court (citizen-taxpayer standing rule)
• State ex rel. Higgins v. Dunn, 496 S.W.2d 480 (Tenn. 1973), Tennessee Supreme Court (Article VII, § 4 authorizes appointment for judicial vacancies)
• Johnson v. Bredesen, 2009 WL 2251301 (6th Cir. 2009), federal court of appeals (registered voters as such lack standing)
• State ex rel. Hooker v. Thompson, 249 S.W.2d 331 (Tenn. 1996), Tennessee Supreme Court (candidates lacked standing on the facts)

Prior AG opinions:

• Op. Tenn. Atty. Gen. 95-58 (May 24, 1995) (declining to defend pre-Emison version)
• Op. Tenn. Att'y Gen. 02-062 (May 16, 2002) (incumbent-only ban defensible)
• Op. Tenn. Att'y Gen. 01-134 (August 29, 2001) (lobbyist contribution restriction)
• Op. Tenn. Att'y Gen. 09-174 (November 2, 2009) (judicial-vacancy appointment authority)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-011.pdf

Original opinion text

January 28, 2010

Opinion No. 10-11

Constitutionality of Restriction on Fund-Raising Activities of Incumbent Legislators

QUESTIONS

1. Whether the different treatment of the fundraising activities of incumbent legislators versus non-incumbent candidates for the general assembly is constitutional?

2. Who would have standing to challenge the constitutionality of Tennessee's statutes governing the election of appellate court judges, i.e., the Tennessee Plan?

3. What provision of the Tennessee Constitution grants to the Legislature the power to fill a vacancy in a judicial office by appointment rather than by an election?

OPINIONS

1. The United States District Court for the Eastern District of Tennessee in Emison v. Catalano, 951 F.Supp. 714 (E.D.Tenn. 1996), held that the "black-out" provision in Tenn. Code Ann. § 2-10-310(a) could not constitutionally be applied to contributions to non-incumbent candidates for seats in the legislature. After this decision, the Act was amended in 1998 to provide that the prohibition on fundraising during the legislative session applied only to incumbent members of the general assembly. This Office has previously concluded that this statute as applied only to incumbent legislators is constitutionally defensible because the restrictions it places on fundraising by incumbent legislators during session are narrowly tailored to support the compelling state interest of avoiding corruption or the appearance of corruption in the legislative process. This Office has also previously concluded that the ban on campaign contributions by lobbyists and employers of lobbyists to members of the General Assembly during the regular legislative session is constitutionally defensible because non-incumbent candidates for membership in the General Assembly are not in the same position as incumbent legislators to influence the legislative process and the ban was narrowly tailored to further the State's compelling interest in preventing corruption or the appearance of corruption.

2. In order to establish standing, a plaintiff must demonstrate that: (1) he has sustained a distinct and palpable injury, (2) the injury was caused by the challenged conduct, and (3) the injury is likely to be redressed by a remedy that the court is prepared to give. Whether a party has standing under these standards to challenge the constitutionality of the Tennessee Plan would depend upon the individual facts and circumstances and, further, would have to be determined by a court of competent jurisdiction.

3. The Tennessee Supreme Court in State ex rel. Higgins v. Dunn held that Art. VII, § 4 authorizes the Legislature to enact legislation providing for the filling of judicial vacancies by appointment.

ANALYSIS

1. Tenn. Code Ann. § 2-10-310(a)(1) provides that "no member of the General Assembly or a member's campaign committee shall conduct a fundraiser or solicit or accept contributions for the benefit of the caucus, any caucus member or member or candidate of the General Assembly or Governor." You have asked whether this statute is constitutional because it restricts the fundraising activities of incumbent members of the legislature but not of non-incumbent candidates for the legislature while the General Assembly is in session.

This statute, when originally enacted as part of the Campaign Contribution Limits Act of 1995, applied to any candidate for the office of member of the general assembly or any candidate's campaign committee. See Public Acts of 1995, Ch. 531, § 1. Soon after the Act went into effect, however, a lawsuit challenging the constitutionality of certain provisions, including § 2-10-310(a), was filed in the United States District Court for the Eastern District of Tennessee, Emison v. Catalano, 951 F.Supp. 714 (E.D.Tenn. 1996). The District Court held that the "black-out" provision in Tenn. Code Ann. § 2-10-310(a) could not constitutionally be applied to contributions to non-incumbent candidates for seats in the legislature. In doing so, the District Court recognized but rejected the rationale underlying the statute:

[A] black-out provision like that in T.C.A. § 2-10-310(a), although inspired by commendable impulse to eliminate corruption and the appearance of corruption in political life, cannot constitutionally be applied to contributions to nonincumbent candidates for seats in the legislature.

In reaching this conclusion, the court has not ignored the affidavit testimony offered by the defendant ..., in which experts in this field, including former Tennessee Attorney General W. J. Michael Cody, point out that contributions to nonincumbent candidates, like contributions to incumbents, can have an effect on the legislative process, and can create the appearance of improper motivations for supporting or opposing proposed legislation, and even of corruption. Individuals and organizations may contribute money to a nonincumbent to punish his or her incumbent opponent for a position taken on certain legislation.

However, ... "any legislative restriction on the exercise of First Amendment rights must be justified by a compelling state interest; further, it must represent the least intrusive means to achieve the legislative goal." And as the Florida Supreme Court recognized ... black-out provisions like the one challenged here do not provide the least intrusive means of achieving the elimination of political corruption, because they deprive nonincumbents, who are not subject to corrupting quid pro quo arrangements in the same way as are sitting legislators, of any means to counterbalance incumbents' advantage of "virtually unlimited access to the press and free publicity merely by virtue of the public forum they are privileged to occupy."

Emison, 951 F.Supp. at 722-23, citing State v. Dodd, 561 So.2d 263, 265 (Fla. 1990).

After the Emison decision, the Act was amended in 1998 to provide that the prohibition on fundraising during the legislative session applied only to incumbent members of the General Assembly. See Public Acts of 1998, Ch. 1062, § 7. This Office has previously concluded that this statute as applied only to incumbent legislators is constitutionally defensible because the restrictions it places on fundraising by incumbent legislators during session are narrowly tailored to support the compelling state interest of avoiding corruption or the appearance of corruption in the legislative process. See Op. Tenn. Att'y Gen. 02-062 (May 16, 2002) (copy attached).

This Office has also previously concluded that, based upon the District Court's reasoning in Emison, the prohibition on contributions by lobbyists and employers of lobbyists to non-incumbent candidates for Governor and membership in the General Assembly during the regular legislative session is unconstitutional. See Op. Tenn. Att'y Gen. 01-134 (August 29, 2001) (copy attached). This Office has further opined that this prohibition is defensible against a challenge on the grounds that it unconstitutionally discriminates against incumbent members of the General Assembly. Specifically, we noted that non-incumbent candidates for membership in the General Assembly are not in the same position as incumbent legislators to influence the legislative process and that a ban on lobbyist contributions to legislators during the session was narrowly tailored to further the State's compelling interest in preventing corruption or the appearance of corruption. See Op. Tenn. Att'y Gen. 02-062 (May 16, 2002).

2. Your next question asks who would have standing to challenge the constitutionality of Tennessee's statutes governing the election of appellate court judges, i.e., the Tennessee Plan, codified at Tenn. Code Ann. §§ 17-9-101, et seq. The doctrine of standing prevents courts from "adjudicating 'an action at the instance of one whose rights have not been invaded or infringed.'" American Civil Liberties Union of Tennessee v. Darnell, 195 S.W.3d 612, 619 (Tenn. 2006) (internal citations omitted). The purpose of inquiring into a party's standing is to determine whether the party has a sufficiently personal stake in the outcome of the proceeding to warrant the exercise of the court's power on its behalf. See Metropolitan Air Research Testing Auth. v. Metropolitan Gov't, 842 S.W.2d 611, 615 (Tenn. Ct. App. 1992). As such, standing is a limitation upon judicial power. See Tennessee Medical Ass'n v. Corker, No. 01-A-01-9410-CH-00494, slip op. at 2 (April 19, 1995) (citing Valley Forge Christian College v. Americans United For Separate of Church and State, Inc., 454 U.S. 464, 475, 102 S.Ct. 752, 70 L.Ed. 2d 700 (1982)).

The standing requirement imposes a duty to allege a "particularized injury concretely and demonstrably flowing from the action of the defendants which will be redressed by the remedy sought." Lugo v. Miller, 620 F.2d 823, 827 (6th Cir. 1981). Thus in order to establish standing, a plaintiff must demonstrate that: (1) he has sustained a distinct and palpable injury, (2) the injury was caused by the challenged conduct, and (3) the injury is likely to be redressed by a remedy that the court is prepared to give. See Tennessee Envtl. Council v. Solid Waste Disposal Control Bd., 852 S.W.2d 893, 896 (Tenn. Ct. App. 1992) and Morristown Emergency & Rescue Squad, Inc. v. Volunteer Dev. Co., 793 S.W.2d 262, 263 (Tenn. Ct. App. 1990).

Although standing does not depend on the merits of a claim, it often turns on the nature and source of the claim asserted. Thus, when the claimed injury involves the violation of a statute or constitutional provision, the court must ask whether the interests of the injured party fall within the zone of interests protected by the statute or constitutional provision in question. See Town of Carthage v. Smith County, No. 01-A-01-9308-CH-00391, slip op. at 5 (March 8, 1995). Furthermore, it is a well established rule in Tennessee that citizens and taxpayers are without standing to maintain a lawsuit to restrain or direct governmental action unless they first allege and establish that they will suffer some special injury not common to citizens and taxpayers generally. See Patten v. City of Chattanooga, 108 Tenn. 197, 65 S.W. 414 (1901). The reasoning behind this rule has been stated to be that "[c]ourts do not sit, to declare abstract propositions of law" and that, "[in matters common to all citizens], the law confers upon the duly elected representatives of the people the sole right to appeal to the courts for redress." Id. at 420.

Thus, whether a party has standing under these standards to challenge the constitutionality of the Tennessee Plan would depend upon the individual facts and circumstances as determined by a court of competent jurisdiction. For example, in State ex rel. Higgins v. Dunn, 496 S.W.2d 480 (Tenn. 1973), the issue of the constitutionality of the Tennessee Plan was raised within the context of a quo warranto proceeding to determine conflicting claims of two persons to the office of Supreme Court justice, one based upon appointment by the governor and the other based upon election by a write-in campaign. However, in Johnson v. Bredesen, 2009 WL 2251301 (6th Cir. 2009), the court found that the plaintiffs' status as registered voters was not sufficient to grant standing to challenge the constitutionality of the Tennessee Plan. Similarly, in State ex rel. Hooker v. Thompson, 249 S.W.2d 331 (Tenn. 1996), the court found that the plaintiff candidates lacked standing based upon their individual circumstances.

3. Your final question concerns the authority given to the Legislature in the Tennessee Constitution with respect to the election of judges and the filling of judicial vacancies. As this Office has previously noted, this issue was addressed by the Supreme Court in State ex rel. Higgins v. Dunn, 496 S.W.2d 480 (Tenn. 1973). Art. VII, § 4, provides that "[t]he election of all officers, and the filling of all vacancies not otherwise directed or provided by this Constitution, shall be made in such manner as the Legislature shall direct." While Art. VI, §§ 3 and 4, provide that appellate and trial court judges are to be elected by qualified voters, these sections are silent as to how vacancies in such judicial offices are to be filled. Furthermore, Art. VII, § 7, provides that "[n]o special election shall be held to fill a vacancy in the office of Judge or District Attorney, but at the time herein fixed for the biennial election of civil officers; and such vacancy shall be filled at the next Biennial election recurring more than thirty days after the vacancy occurs." Reading these constitutional provisions together, the Supreme Court held that Art. VII, § 4, authorized the Legislature to enact legislation providing for the filling of judicial vacancies by appointment. 496 S.W.2d at 487. See Op. Tenn. Att'y Gen. 09-174 (November 2, 2009) (copy attached).

ROBERT E. COOPER, JR.
Attorney General and Reporter

CHARLES L. LEWIS
Deputy Attorney General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Stacey Campfield
113 War Memorial Building
Nashville, TN 37243-0118