At 11 a.m. Tuesday, the Supreme Court is scheduled to hold one hour of oral argument on the solicitation of campaign donations by judicial candidates, in the case of Williams-Yulee v. Florida Bar. Arguing for the candidate will be Andrew J. Pincus of the Washington, D.C., law office of Mayer Brown LLP, and for the Florida Bar will be Barry Richard of the Tallahassee law office of Greenberg Traurig P.A. Each will have thirty minutes of time.
Since the 1830s, Americans have been claiming a role for themselves as voters in the naming of judges for their courts. The obvious lesson, early on and now, is that citizens trust themselves to handle that task fairly wisely and trust that the judges who are chosen that way will do the job impartially.
In modern times, some uncertainty has crept in about those assumptions, especially as the cost of elections has escalated, including the price of running for a judgeship. Former Justice Sandra Day O’Connor has made a new career in retirement of leading a public charge against judicial elections.
If campaign money is a threat to judicial impartiality, but the First Amendment is understood to treat political money as speech, how far can states go to regulate it? The Supreme Court is no stranger to the abiding controversy over money in politics, and takes that up again this week in a Florida judicial election case.
Judges are still elected in thirty-nine states, and in all but nine of those states, there is a law or an ethics code provision that bans a judicial candidate from personally asking for campaign donations. That, it appears, is more preferable as a remedy than getting rid of judicial elections altogether, or relying on judges to disqualify themselves in specific cases.
A civic-minded Tampa lawyer, who decided in September 2009 that “the time has come for me to seek elected office,” is at the center of a case testing the constitutionality of that kind of ban. Lanell Williams-Yulee sent out a mass mailing saying that she was running for county judge, declaring: “I want to bring fresh ideas and positive solutions to the Judicial bench.” Her plea for money was modest indeed, by modern campaign standards: “$25, $50, $100, $250, or $500.”
Because Florida’s judicial ethics code disapproves of that sort of appeal, Williams-Yulee wound up with a public remand and a financial penalty of $1,860.30 (to cover the Florida Bar’s expenses of enforcing the ban in her case). Relying on the First Amendment, she challenged the sanctions, but lost in the Florida Supreme Court.
“This court recognizes,” the state tribunal said, “that by prohibiting judicial candidates from personally soliciting campaign contributions, [the ban] clearly restricts a judicial candidate’s speech.” Thus, it said, the code provision had to be proven to serve “a compelling state interest in preserving the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary.” It concluded that Williams-Yulee’s sanction met that test.
That conclusion contributed to the now-widespread disagreement among state and lower federal courts over the issue. Three state supreme courts and two federal appeals courts have upheld such bans, while four federal appeals courts have struck them down. Florida’s Supreme Court disagrees with the view of the federal appeals court in its area, the U.S. Court of Appeals for the Eleventh Circuit.
Lawyers for Williams-Yulee took her case to the Supreme Court last June, raising one issue: “Whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.” The Florida Bar chose not to file a brief in response, but the Supreme Court asked for one last July. The Bar’s lawyers then filed a short brief, joining in urging the Justices to settle the issue, while promising a vigorous defense on the merits of its ban.
Briefs on the merits
Williams-Yulee’s brief on the merits opens strategically with a quotation from Justice Anthony M. Kennedy, the Court’s most predictable defender of the idea that, in politics, money equals speech. In an opinion in 2002, Kennedy wrote that a “state cannot opt for an elected judiciary and then assert that its democracy, in order to work as desired, compels the abridgement of speech.” Kennedy was talking then about a ban on what judicial candidates could say about actual campaign issues, but the comment could be helpful on the money question, too.
The brief is a frontal attack on the Florida ethical ban on solicitation, arguing that it fails to deal with the one problem for which the Court has given states some leeway to regulate: quid pro quo corruption — that is, buying government favors with donated money. The ban is aimed only at the candidate’s speech in asking for money, and thus has nothing to do with what a donor might be attempting to gain by responding to such a plea, the filing argued.
Since the ban is an across-the-board restriction based directly on what can be said, and thus must be judged by the rigorous standard of “strict scrutiny,” the Florida restriction has little chance of surviving such review, according to Williams-Yulee. Nothing that the Florida ethics code requires will stop the candidate from knowing who contributed, or how much, and from writing thank-you notes to those who do give, so the ban cannot achieve the supposed purpose of insulating the candidate from influence, according to that brief. That, it contended, makes it far too broad.
No one would believe, Williams-Yulee contended, that a person with money who does not give in response to a mass mailing is going to face bias in a future case before that judge, if she were to be elected.
The brief also argued that the Florida solicitation ban is not even necessary, because Florida can enforce rules requiring judges to recuse themselves from cases in which they might have a personal interest, and it can enforce dollar limits on what donors may contribute.
Williams-Yulee has a fallback position: if the ban is not struck down on its face, it at least should be nullified as it applied specifically to her situation, because her speech activity came only in a written, mass mailing to a broad audience. Whatever else the Florida Bar may try to do about judicial candidates’ campaigning, it can’t go that far, the brief summed up.
The Florida Bar’s merits brief is, as promised, a fervent defense of the theory that direct solicitation of money by a judicial candidate is an invitation to quid pro quo corruption, or at least to the appearance of that kind of corruption. What the ban does, according to the Bar, is to break “the direct link between contributors and judicial candidates.”
It puts no restraints of any kind on “free and robust expression” by a judicial candidate or by that candidate’s supporters, the Bar argued, and puts only a minimal burden on fund-raising because such a candidate may depend upon an independent committee of supporters to gather contributions.
While it conceded that a judicial candidate can find out who gave money to the campaign, the brief contended that .the funds are actually managed by someone other than the candidate, and those who do donate have no way of knowing whether the candidate is going to learn who they were.
The true problem in the kind of corruption at which the ethical ban is aimed, according to the Bar’s arguments, is a direct linkage between a contributor and the candidate, and that is not a risk under the approach Florida has taken.
To the argument that Florida has singled out judicial candidates for a restriction on fund-raising, the Bar responded that that is simply the only group of candidates for which the state supreme court had the authority to impose a restraint.
Finally, the Bar’s brief contended that recusal requirements and contribution ceilings are not adequate substitutes for the solicitation ban, because it is hard to prove the level of bias that would require recusal, and because limits on the amount of contributions do not directly address the appearance of corruption of having a candidate for a judgeship making a direct and personal plea for money.
There is a significant imbalance in the amount of support the two sides draw from amici, with the Florida Bar garnering a dozen of those briefs compared to only a few for Williams-Yulee.
Williams-Yulee has attracted the support of the American Civil Liberties Union and other First Amendment advocacy groups, and of attorneys who have run for state judicial offices.
On the Florida Bar’s side are pro-democracy reform groups, historians of judicial elections, professors of law and political science, groups that are strong foes of the influence of money in politics, eleven states with similar solicitation bans, state and local judicial reform organizations, the Conference of Chief Justices [of the states], former Florida chief justices and bar leaders, the American Bar Association (which advocates such a ban in its code of judicial conduct), and former President Jimmy Carter’s Carter Center project on democracy (which monitors elections around the world).
The Court is expected to issue a final decision in the case sometime this spring, before the Term ends in late June.