Skip Navigation
Archive

Florida’s Ban on Direct Solicitation Has Significant Implications for Due Process

Florida’s rule prohibiting judicial candidates from personally asking for campaign funds from donors is a reasonable restriction that protects the integrity of Florida’s court.

  • Kate Berry
January 16, 2015

In “A Minor Meas­ure with Major Bene­fits before the Supreme Court?,” attor­ney Bob Bauer ques­tions whether Flor­id­a’s rule prohib­it­ing judi­cial candid­ates from person­ally soli­cit­ing campaign contri­bu­tions can both be minor in scope and yield signi­fic­ant bene­fits. Bauer’s skep­ti­cism elides the fact that two distinct rights are at stake –– Flor­id­a’s rule imposes only a minor restric­tion on First Amend­ment speech, but it provides crucial due process protec­tions.

The Bren­nan Center and several ally groups made this argu­ment in an amicus brief in support of Respond­ent in Willi­ams Yulee v. The Flor­ida Bar, a case chal­len­ging Flor­id­a’s personal soli­cit­a­tion rule. The Bren­nan Center’s brief argues that Flor­id­a’s rule is a reas­on­able regu­la­tion that is tailored to the state’s compel­ling interest in judi­cial integ­rity.

As Bauer seems to acknow­ledge, Flor­id­a’s rule is a minor infringe­ment on speech. Candid­ates are still able to effect­ively fundraise through campaign commit­tees and the regu­la­tion does not restrict speech about the candid­ate’s qual­i­fic­a­tions, leav­ing candid­ates free to discuss their values and views on issues import­ant to voters.

However, Flor­id­a’s rule has signi­fic­ant implic­a­tions for due process. It is well estab­lished that the appear­ance as well as the actu­al­ity of an impar­tial judi­ciary is at the core of due process. Indeed, courts have found that judi­cial integ­rity is an “interest of the highest order” given that the public’s confid­ence in judg­ments is depend­ent on courts’ “abso­lute prob­ity.”

Personal soli­cit­a­tion is partic­u­larly threat­en­ing to judi­cial integ­rity in at least two ways. First, it negat­ively affects lawyers and poten­tial litig­ants’ percep­tion as to the fair­ness of the judi­cial system. Personal soli­cit­a­tion by judi­cial candid­ates creates the appear­ance that candid­ates are seek­ing contri­bu­tions in exchange for favor­able treat­ment in court. At the very least, it creates the reas­on­able percep­tion that personal soli­cit­a­tion will result in the judge’s conscious or uncon­scious bias in favor of contrib­ut­ors and against those who decline to contrib­ute. Second, personal soli­cit­a­tion adversely impacts public confid­ence because it creates the appear­ance that justice is for sale –– that a candid­ate’s “ask” is an offer to favor one party over another in exchange for a campaign contri­bu­tion. Addi­tion­ally, it provides a signi­fic­ant oppor­tun­ity for ingra­ti­ation, lead­ing to a more general percep­tion of bias in the courtroom. These concerns are partic­u­larly acute given the dramatic rise in judi­cial campaign spend­ing and the role of lawyers and lobby­ists as the most signi­fic­ant campaign contrib­ut­ors.

Recent poll results confirm that public confid­ence in the courts is threatened by personal soli­cit­a­tion. In a poll of registered voters in the 39 states that elect judges, 63 percent of respond­ents indic­ated that it would lower their confid­ence in the courts if judi­cial candid­ates could ask for contri­bu­tions person­ally — by mail or email, over the phone, or face to face. Of these respond­ents, 81 percent said that personal soli­cit­a­tion would lower their confid­ence “a great deal.”

Bauer is correct that “the stakes are high; the stakes are also low” –– Willi­ams-Yulee is a high stakes due process case with minor implic­a­tions for judi­cial candid­ate speech.

(Photo: Think­stock)

Kate Berry works in the Fair Courts Project at the Bren­nan Center for Justice at New York School of Law.