Crossposted on The National Law Journal
The U.S. Supreme Court heard oral arguments on Jan. 20 in Williams-Yulee v. Florida Bar, a First Amendment challenge to a Florida rule that prohibits judicial candidates from personally requesting campaign contributions. The argument touched on everything from the differences between judges and politicians to the justices' own experiences making requests of lawyers — and lawyers' reluctance to say "no."
For court watchers counting potential votes on each side, the argument left little guidance to how the court will ultimately rule. But if it rejects Florida's rule, it will severely limit states' ability to protect the integrity of our courts.
Thirty-nine states use elections to select judges, and all of them have rules governing how judicial candidates can conduct their campaigns. Bans on the personal solicitation of campaign contributions are one of the most common restrictions. Thirty states bar at least some forms of personal solicitation by judicial candidates and 22 states, including Florida, have broad prohibitions.
These rules did not develop in a vacuum. In Florida, the challenged rule was part of a package of reforms introduced after a series of corruption scandals roiled the state and led to the resignation of four Florida Supreme Court justices. As described in an amicus brief whose signatories included three former chief justices of Florida, scandals preceding the adoption of the rule included a decision ghost-written by a lawyer representing the public utilities industry in a case before the high court, along with a Las Vegas gambling junket by a sitting justice, paid for by a dog track with a case pending before the high court.
Florida's rule was one aspect of the state's response to these scandals, and it targets a real threat to the integrity of our courts — the personal solicitation of contributions by judges and judicial candidates. Personal solicitation does damage not only to the lawyers and litigants appearing before judges, but also to the public and to its confidence in the essential fairness of our courts.
Personal fundraising requests by judicial candidates to lawyers or potential litigants, the most common donors to judicial campaigns, are by their nature coercive. Most troubling, such requests raise the specter that the decision whether or not to contribute could shape how a judge approaches a case. As four former chief justices from Texas and Alabama — two states that permit personal solicitation — noted in an amicus brief to the court, "our experience confirms there is a real risk that solicitation can morph into a demand."
In one example cited in their brief, a judge sent a personal email to a local lawyer soon after being elected, stating, "I trust that you will see your way clear to contribute to my campaign account in an amount reflective of the $2,000 contribution you made towards my defeat." The email further stated that "in very few realms does tardiness not incur an up-charge."
Prohibiting personal solicitation helps close the door to such tactics, insulating judges and those who appear before them from fundraising efforts that risk tainting the perceived fairness of judicial proceedings.
Even more pernicious is the effect of personal solicitation on the public's confidence in the fairness of our courts — and on the perception that justice is for sale. A recent poll by the Brennan Center and Justice at Stake found that 63 percent of respondents would have less confidence in the courts if judicial candidates could personally ask for contributions, whether by mail or email, over the phone or face to face. Of those who said their confidence would be lowered, 81 percent said that personal solicitation would lower their confidence "a great deal."
Importantly, although Florida's personal-solicitation ban plays a vital role in promoting judicial integrity, its impact on judicial candidates' speech is modest. Judicial candidates are free to speak about their backgrounds, qualifications, values and views on any issues, legal or otherwise. They can still raise money. The only limitation on their conduct is that they cannot personally ask for contributions but rather must raise funds through separate committees. As such, Florida's rule is a targeted measure that promotes a vital interest in the integrity of our courts.
Restrictions on personal solicitation are particularly important now, as judicial campaign spending has skyrocketed in recent years. Between 2000 and 2009, contributions to state supreme court races more than doubled as compared with the previous decade, putting new pressures on judges to fundraise and on would-be contributors to donate to judicial campaigns. In 2011-2012 election cycle, supreme court candidates raised more than $30.5 million to support their campaigns — including three Florida Supreme Court candidates facing a retention election who collectively raised more than $1.5 million, representing a threefold increase since the 1991-1992 cycle. This flood of money is affecting the public's confidence in our courts. One recent poll found that 95 percent of Americans believe that campaign contributions impact judicial decisions. Judges themselves have also raised the alarm. In a survey of state judges, nearly half stated that they believed campaign contributions are influencing judicial decisions.
Bans on personal solicitation are one important bulwark against this crisis of confidence in our courts.