The Supreme Court Should Uphold Reasonable Regulations on Judicial Campaigns

The increasing flood of judicial campaign spending may damage the public’s eroding confidence in an impartial judiciary.

October 9, 2014

Crossposted on Law360.

On October 2, 2014, the Supreme Court agreed to hear a significant election law case involving fundraising in judicial elections. In Williams-Yulee v. Florida Bar, the Court will consider a First Amendment challenge to a canon in the Florida Code of Judicial Conduct which prohibits the personal solicitation of campaign contributions by a judicial candidate (under these rules, campaign donations may only be solicited and accepted indirectly through a candidate’s campaign committee). 

The petitioner, Lanell Williams-Yulee, was disciplined by the Florida Bar after she signed a letter seeking campaign contributions in her unsuccessful 2009 run for Hillsborough County Judge. Williams-Yulee challenged Canon 7C(1) as an infringement on her right to free speech, and the Florida Supreme Court rejected that challenge.

While it may seem odd that the Court is devoting part of its very limited docket to judicial elections, advocates in the field have long expected the Court to take such a case.  The outcome, however, is anything but certain. 

Background

This is the first Supreme Court case to consider the interplay between the First Amendment and restrictions on judicial campaign activity since 2002, when the Court decided Republican Party of Minnesota v. White. In that case, a 5-4 majority applied strict scrutiny to strike down Minnesota’s “announce clause,” a canon of judicial conduct prohibiting judicial candidates from discussing issues that could come before their court were they elected. 

Justice O’Connor has subsequently indicated she voted the wrong way in White, suggesting that the case may have contributed to increasingly partisan and polarizing judicial elections.  Justice O’Connor is no longer on the Court, and it is unclear how the new justices view the tension (if they see one at all) between judicial campaign spending and the public’s confidence in the judiciary. 

Moreover, Williams-Yulee is the first case regarding judicial campaign conduct since the landmark 2009 ruling in Caperton v. Massey, in which a 5-4 majority recognized for the first time that significant judicial campaign spending could give rise to a due process violation of the rights of litigants.  Since that time, the Court has handed down major blows to regulation of money in politics in Citizens United and McCutcheon. It remains to be seen whether this Court’s majority will view Williams-Yulee as a case primarily about first amendment rules on campaign speech rather than about reasonable efforts to protect judicial independence and impartiality.

Why is this Case Important? 

There are 39 states that hold elections for at least some judges, and each of these states imposes regulations on judicial conduct that do not apply to candidates in executive and legislative races. Of these, 30 have adopted some prohibition on direct solicitation of campaign contributions by judicial candidates, reasoning that judges directly requesting and receiving donations can harm the public’s confidence in the courts. And 22 states employ a blanket prohibition on direct fundraising similar to Florida’s. 

These and additional regulations in the judicial codes of conduct are based on the important premise that judges are different. Unlike representative officeholders, judges may not favor their campaign supporters once on the bench.To the contrary, judges must faithfully apply the law to the facts before them, without consideration of whether a party or lawyer in the case supported the judge’s election. 

And unlike other elections where some argue that the sole acceptable justification for campaign finance regulation is to prevent quid pro quo corruption, the Supreme Court has repeatedly emphasized that the public’s confidence in the fairness and impartiality of the judiciary is itself a compelling state interest of the highest order. The high court’s consideration of public confidence in judicial impartiality has thrown lower courts into confusion, and this confusion likely persuaded the Supreme Court to consider Williams-Yulee

Other Challenges to Direct Judicial Solicitation Restrictions

The results of various challenges to direct solicitation prohibitions have been all over the map.  At the federal level, the Third and Seventh Circuits have upheld these regulations against First Amendment challenges, as have the highest state courts of Arkansas, Florida, Maine, and Oregon. In contrast, the Sixth, Eighth, Ninth, and Eleventh Circuits have found that, at least in some circumstances, these restrictions on judicial campaign solicitation may violate candidates’ First Amendment rights. Moreover, the courts have not reached consensus on the appropriate standard of scrutiny, with some applying strict scrutiny and some appearing to apply a less-searching “close fit” test between the restriction and the goal of protecting confidence in the judiciary.

Majority of People Want an Impartial Judiciary

The ability of the states and the judiciary itself to adopt reasonable regulations on judicial campaigns has important real world impacts. As documented in reports by the Brennan Center, Justice at Stake, and the National Institute of Money in State Politics, since 2000 states have seen an explosion of campaign spending in state judicial elections. A huge percentage of all campaign spending in judicial elections is financed by frequent litigants and lawyers that have business before the judges in whose elections they spend. And in poll after poll, it has been shown that the overwhelming majority of the public (over 87% in one survey) believes that judicial campaign spending can influence judicial decision-making. 

If the Supreme Court applies strict scrutiny to strike down reasonable restrictions on judicial campaign activity, the increasing flood of judicial campaign spending may further damage the public’s eroding confidence in the judiciary.

(Photo: Flickr/pthortron)