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