Don’t Strike Down Judicial Campaign Rule

If the Supreme Court strikes down Florida’s modest regulation on judicial campaign conduct, it will threaten the integrity of the state’s judiciary and further erode the public trust in the courts.

January 20, 2015

Cross-posted on the Tallahassee Democrat

Today the U.S. Supreme Court will hear oral argument in Williams-Yulee v. Florida bar, a case that will have major implications for state courts across the U.S., including Florida’s. At issue is whether states that prohibit judicial candidates from directly asking donors for campaign contributions violate candidates’ First Amendment rights. But if years of scandal and corruption in Florida’s judiciary prior to the rule teach us anything, it’s that the U.S. Supreme Court should uphold this rule in the interest of protecting the integrity of its courts.

Florida’s rule, which prohibits judicial candidates from personally asking for campaign funds, is designed to insulate judges against the perception of favoritism toward their supporters and to protect the public’s confidence in judicial integrity.

Judicial candidates can still fundraise through separate committees, but may not personally ask for contributions. There’s a good reason for that. The majority of campaign contributions in judicial elections tend to come from the lawyers and litigants who appear in court, so insulating aspiring judges from personally asking them for money reduces the risk and appearance of bias in future cases.

The rule was adopted in 1973 as part of a package bringing much-needed reform to Florida courts. At the time, there was widespread corruption in Florida’s judiciary. In fact, multiple Florida Supreme Court justices were forced to resign following scandals involving campaign supporters.

Florida is not alone. Of the 39 states that use elections to select at least some of their judges, 30 have a rule against some forms of personal solicitation by judicial candidates, and 22 have broad prohibitions such as Florida’s. Other judicial rules include safeguards against discrimination based on race, sex, religion and national origin, guidelines for disqualifications in cases where judge's impartiality might reasonably be questioned, and a prohibition on judges accepting large gifts from lawyers or their firms.

Striking down Florida’s rule now would be particularly troubling in light of the marked rise in campaign spending in judicial elections. Since the U.S. Supreme Court’s 2010 Citizens United decision (which allowed unlimited independent spending in elections, including judicial elections), special interest groups have spent millions in judicial races to stack the deck in their favor. Outside spending nearly doubled in the 2011-2012 election cycle to $24.1 million — up from $12.8 million in 2007-2008.

While campaign fundraising is an unfortunate reality of judicial elections, it is important to remember that judges are not like other elected officials. They must neutrally apply the law to the facts of any given case. They should be free of political pressure, and must not favor their supporters over those who did not contribute to their campaigns.

If the U.S. Supreme Court strikes down Florida’s modest regulation on judicial campaign conduct, it will threaten the integrity of the state’s judiciary and further erode the public trust in the courts.

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