Can Judicial Candidates Solicit Money?
Last week, before they convened again at oral argument to mark the start of another term, the justices of the United States Supreme Court selected for review a case that will help further define the murky relationship between state judges and those who seek to shape justice before them. In Williams-Yulee v. The Florida Bar, the Court will decide whether a state judicial canon that requires judicial candidates to seek campaign contributions through a committee, rather than directly from donors, violates that candidate’s first amendment free-speech rights.
The case is interesting in its own right. The electioneering judgment employed by this particular judicial candidate was so disconcerting it’s probably a good thing for the law (not to mention the litigants of Florida) that ultimately she lost the election for which she was campaigning. But the timing of the case is interesting, too. It comes to the Court in a season of unprecedented spending on (mid-term) judicial campaigns all across the country—money unleashed upon campaigns, including judicial elections, because of the Court’s Citizens United and McCutcheon decisions.
Having expanded the scope of the first amendment for corporations, having codified a constitutional nexus between speech and money, having altered the political funding dynamics of this nation in countless ways, the Court’s conservatives now have to track back a bit and decide in “small” cases like this whether state officials can throw up any reasonable obstacles to the flow of cash from candidates and the men and women and organizations who want to contribute to them. Are the justices prepared to draw a line between judicial elections and political ones? And if so will the line be drawn here?
This case isn’t about the flow of money. The dispute centers on a branch of the first amendment tree different from the one the justices have focused upon lately with their epic campaign finance rulings. There was no mention of Citizens United or McCutcheon in the briefs and the campaign money will continue to flow into Florida’s judicial campaigns no matter how this case is resolved. The fight here instead is about whether state officials can at least try to make this flow of money seem less unseemly than it is. Thirty-nine states today provide for some sort of judicial elections and nearly every one of them also has adopted a rule that forbids judicial candidates from directly soliciting money.
It is, indeed, hard to imagine a more reasonable restriction on someone who wants to be (or to stay) a judge. Sure, it restricts that candidate’s free speech rights. But every judge, including even the justices in Washington, is required to abide by certain restrictions upon their speech. That’s what many judicial ethics rules are about. This restriction in Florida happens to require judges to take an extra few steps before they can count their campaign cash. Yet four federal appeals circuits (the Sixth, Eighth, Ninth, and Eleventh) have concluded that these restrictions are unconstitutional. Two federal appeals circuits (the Third and Seventh) along with state supreme courts in Arkansas, Florida, and Oregon, have concluded that they fine. It’s a clear conflict.
All of which puts the erstwhile candidate in this case, Lanell Williams-Yulee, in a slightly awkward position as she moves on with the rest of her life. She signed a campaign fundraising letter in which she solicited campaign contributions. There is no dispute about that. Nor is there any dispute that the candidate’s conduct violated Canon 7C(1) of the Florida Code of Judicial Conduct, which prohibit judicial candidates from personally soliciting campaign contributions by requiring them to form a committee that may then ask for the same money from those same donors. The question is whether the Canon itself violates the first amendment as the justices in Washington now see it.
The Supreme Court of Florida answered this question “no” in May when it upheld the constitutionality of Canon 7C(1). Applying the strictest standard of scrutiny, the majority concluded that the Florida ethical rule “promotes the State’s compelling interests in preserving the integrity of the judiciary and maintaining the public’s confidence in an impartial judicial, and that it is narrowly tailored to effectuate those interests.” The Florida justices relied upon the language employed by their colleagues in Oregon, who resolved a similar challenge in a similar way, to explain why:
So long as judges are chosen by the electoral process, it will be impossible to deny lawyers and potential litigants the right to give to campaigns or to deny judges the right to seek contributions. Both activities are too important in the scheme of things to permit either to be forbidden outright. Some other, less intrusive method is needed.
[The canon] is that method. It permits the judge to obtain funds to carry out a campaign but eliminates the specter of contributions going from the hand of the contributor to the hand of the judge. The limitation on the ability to raise funds need not cause the campaign to suffer, if the judge picks good people for his or her campaign finance committee. It is true that the committee, however well suited to the task, may have trouble obtaining as much as the judge might have raised by personal buttonholing, but that is the point.
The justices in Washington, meanwhile, took this case to resolve the split among the circuits over these campaign committee laws. They took this case knowing that there already is more money in judicial campaigns than there ever has been and that the trend is not going to reverse itself anytime soon. I don’t blame the lawyers for failing to invoke Citizens United or McCutcheon but it seems to me that many of the same first amendment principles apply here as the Court’s conservatives said applied in those two epic cases. And that might be bad news for those who believe that the rule of law is particularly vulnerable to the flood of cash now pouring into the campaigns of those sworn to uphold it.
The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.