Analysis

Florida used to have a tawdry reputation for corrupt judges, but one of the state’s key remedies for that may have gone too far.  That, at least, was the impression that emerged from an hour of argument Tuesday on the constitutionality of a flat ban on personal pleas for campaign donations by candidates for judicial seats.   The vote on it may be close, but a First Amendment umbrella over judicial money-raising could be the result.

It took only a few minutes into the argument in Williams-Yulee v. Florida Bar for Justice Anthony M. Kennedy — the Court’s main guardian of campaign-financing freedom — to set the tone.  He advised a lawyer for a judicial candidate to stop making concessions — even minor ones — to state power to regulate the way those candidates ask for money.  One concession, Kennedy said colorfully, “and it’s off to the races.”

There clearly were champions on the bench for the idea that states should have some leeway to regulate fund-raising in judicial campaigns, but there was little sign that they had the votes to prevail.  Those Justices could not seem to agree on just what reasons a state would have to have for imposing limits.

If the impressions of the argument hold as the Justices deliberate,  maybe the only question is just what constitutional test a majority applies to Florida’s solicitation ban: “strict scrutiny,” or something less demanding.  The judicial candidate’s lawyer, Washington, D.C., attorney Andrew J. Pincus, argued for the toughest constitutional standard, but the Court has never before used that in judging the money-raising side of campaign finance.  And Pincus may not need that to win, it seemed.

It was very obvious, by the end of the argument by the defender of the Florida ban, Tallahassee lawyer Barry Richard, that the ban has so many loopholes in it that it may do little or nothing to serve its goal of preventing corruption of the bench.  The ban might just fall because, seemingly, it is not actually a ban.

A judge cannot ask for money personally, under the state ethics code, but a campaign chairman can do so, and can even say he was put up to it by the judge, can say that the judge will be told who gave, and can say that the judge will send a thank-you note.  Richard insisted repeatedly that those are not real loopholes, because the real target is direct communication, but the loopholes nonetheless loomed as quite large.  Richard’s adversary, Pincus, stressed them as often as he could.

Although Justice Sonia Sotomayor let go a glancing blow at the majority of a Court that has continued to permit the free flow of money into political campaigns, there was little evidence to show that the same majority is changing its mind, or that it is willing to carve out an exception that would allow states to shut down personal fund-raising by judicial candidates — an exception that the Court’s more liberal judges seemed interested in creating.

Throughout the argument, the Justices seemed to be trying to sort out a fundamental dilemma: if states are allowed to elect their judges, are they also allowed to restrict how they campaign?  And, if not, what sense does it make to elect judges in the first place?  The liberals on the bench appeared to want to leave the states with some option to regulate, to help keep the judicial system fair and impartial, while the conservatives seemed to suggest that states have to live with the choice that they make, restrained by the First Amendment.

As attorney Pincus reined in his argument to allow for some state action to serve an interest in judicial ethics, Justice Kennedy bluntly told him that it is probably “unworkable” to try to write a detailed election code that serves that interest, implying that states should look elsewhere to pursue that goal.

But, as the Justices probed just what was allowed and not allowed under the Florida ban, Pincus’s argument appeared to strengthen.

As attorney Richard tried to protect the solicitation ban by arguing that it really did not impose much of a restraint on judicial campaigning, Chief Justice John G. Roberts, Jr., told him he was switching positions from his defense of the need for restraint.

And, as the Justices pressed Richard for the detailed do’s and don’t’s of the Florida ban, his argument seemed to grow weaker.

The Justices will now move into weeks of deliberation, before deciding the case sometime before the Term ends early next summer.