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May 15, 2015
Judicial candidates may not personally solicit contributions

By Gary Blankenship
Senior Editor

The ban in Florida’s judicial canons on judicial candidates personally soliciting for campaign contributions has been upheld by the U.S. Supreme Court in a 5-4 decision.

“A state may assure its people that judges will apply the law without fear or favor — and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court,” Chief Justice John Roberts wrote for the court’s majority.

The opinion in Williams-Yulee v. The Florida Bar, case no. 13-1499, was released April 29.

The case stemmed from a 2009 judicial candidacy by Lanell Williams-Yulee, who filed early for a Hillsborough County judgeship. At the time, she was the only person who submitted papers, which allowed her campaign to begin raising funds. Eventually, the incumbent for that judgeship also filed and ultimately won reelection.

Yulee sent out a personally signed letter to prospective donors requesting campaign donations. Florida Judicial Canon 7C(1) requires that judges and judicial candidates create a committee to seek contributions and prohibits personal solicitations.

Yulee was prosecuted by the Bar after the election for violating Bar Rule 4-8.2(b), which requires lawyers who are judicial candidates to follow Florida’s Code of Judicial Conduct. (The Judicial Qualifications Commission can only prosecute judges.) She acknowledged that she misread the canon, thinking it did not apply until she had an announced opponent. But she also argued the First Amendment allowed the personal solicitation. The Florida Supreme Court rejected that argument in upholding a public reprimand for Yulee, who then appealed to the U.S. Supreme Court.

Because the Bar prosecuted the grievance case, it was named as the respondent. Oral arguments were heard January 15, in which Tallahassee attorney Barry Richard represented the Bar. The case has national significance because 39 states have judicial elections and 30 of those have a contribution restriction similar to Florida’s.

Chief Justice Roberts rejected claims by the Bar and some amici that the court should apply the looser “closer scrutiny” standard instead of the “strict scrutiny” standard for state regulation of the First Amendment, saying that Canon 7C(1) met the strict scrutiny standard. (Justice Ruth Bader Ginsburg did not concur with using the strict scrutiny standard.) He also said regulations on judicial candidate fundraising can be different than those for the legislative and executive branches, because judges perform a different role and are expected to fairly apply the law.

“The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling,” Roberts wrote. “In short, it is the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity that prompted the Supreme Court of Florida and most other states to sever the direct link between judicial candidates and campaign contributors. As the Supreme Court of Oregon explained, ‘the spectacle of lawyers or potential litigants directly handing over money to judicial candidates should be avoided if the public is to have faith in the impartiality of its judiciary.’ In re Fadeley, 310 Ore. 548, 565, 802 P. 2d 31, 41 (1990).”

Roberts also addressed claims that the direct solicitation prohibition was essentially meaningless since judicial candidates could easily find out who had contributed and even write thank you notes to contributors.

“It is always somewhat counterintuitive to argue that a law violates the First Amendment by abridging too little speech,” Roberts wrote. “ . . . . The solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: personal requests for money by judges and judicial candidates. The Canon applies evenhandedly to all judges and judicial candidates, regardless of their viewpoint or chosen means of solicitation. And unlike some laws that we have found impermissibly under inclusive, Canon 7C(1) is not riddled with exceptions. . . . Indeed, the Canon contains zero exceptions to its ban on personal solicitation.”

He waved off contentions, including in dissents, that there’s no difference between direct requests for contributions by a judicial candidate and requests from a committee.

“The identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest. When the judicial candidate himself asks for money, the stakes are higher for all involved. The candidate has personally invested his time and effort in the fundraising appeal; he has placed his name and reputation behind the request. The solicited individual knows that, and also knows that the solicitor might be in a position to singlehandedly make decisions of great weight: The same person who signed the fundraising letter might one day sign the judgment. This dynamic inevitably creates pressure for the recipient to comply, and it does so in a way that solicitation by a third party does not,” Chief Justice Roberts wrote.

Roberts rejected Yulee’s argument that the canon is too broad, noting her counsel conceded that it would be proper to restrict a judge from soliciting contributions from lawyers and litigants in court and that in-person solicitations might properly be restricted, but not the mailed ones that she used. She also argued that recusal and limits on campaign contribution limits offer adequate protections.

“A rule requiring judges to recuse themselves from every case in which a lawyer or litigant made a campaign contribution would disable many jurisdictions. And a flood of postelection recusal motions could ‘erode public confidence in judicial impartiality’ and thereby exacerbate the very appearance problem the state is trying to solve,” Roberts argued. “Moreover, the rule that Yulee envisions could create a perverse incentive for litigants to make campaign contributions to judges solely as a means to trigger their later recusal — a form of peremptory strike against a judge that would enable transparent forum shopping.”

As for contribution limits, “we have never held that adopting contribution limits precludes a state from pursuing its compelling interests through additional means. And in any event, a state has compelling interests in regulating judicial elections that extend beyond its interests in regulating political elections, because judges are not politicians,” Roberts wrote.

While dissents from the opinion argued that some types of direct solicitation would be allowable, Roberts said the majority declined to enter the “swamp” of drawing a line between what kinds of direct solicitations might be permissible and which would not.

Roberts concluded with a reference to the Founding Fathers, noting Alexander Hamilton advocated for an appointed judiciary while Thomas Jefferson thought appointing judges was inconsistent with “a government founded on the public will.”

“It is not our place to resolve this enduring debate. Our limited task is to apply the Constitution to the question presented in this case. Judicial candidates have a First Amendment right to speak in support of their campaigns. States have a compelling interest in preserving public confidence in their judiciaries. When the state adopts a narrowly tailored restriction like the one at issue here, those principles do not conflict. A state’s decision to elect judges does not compel it to compromise public confidence in their integrity,” Roberts said.

His opinion was joined by Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, and Justice Ginsburg partially concurred..

In dissent, Justice Antonin Scalia, who was joined by Justice Clarence Thomas, said the court did not apply strict scrutiny but “sleight of hand” in arguing Canon 7C(1) was narrowly tailored in restricting First Amendment rights.

“Canon 7C(1) does not narrowly target concerns about impartiality or its appearance; it applies even when the person asked for a financial contribution has no chance of ever appearing in the candidate’s court. Florida does not invoke concerns about coercion, presumably because the Canon bans solicitations regardless of whether their object is a lawyer, litigant, or other person vulnerable to judicial pressure. So Canon 7C(1) fails exacting scrutiny and infringes the First Amendment. This case should have been just that straightforward,” Scalia wrote.

He also argued that Florida’s reliance on “public confidence in judicial integrity” as a reason for the rule is an “ill-defined interest.”

In a separate dissent, Justice Anthony Kennedy agreed with Justice Scalia but said he wanted “to underscore the irony in the Court’s having concluded that the very First Amendment protections judges must enforce should be lessened when a judicial candidate’s own speech is at issue. It is written to underscore, too, the irony in the Court’s having weakened the rigors of the First Amendment in a case concerning elections, a paradigmatic forum for speech and a process intended to protect freedom in so many other manifestations.”

He also said the canon fails the strict scrutiny standard.

“The candidate who is not wealthy or well-connected cannot ask even a close friend or relative for a bit of financial help, despite the lack of any increased risk of partiality and despite the fact that disclosure laws might be enacted to make the solicitation and support public. This law comes nowhere close to being narrowly tailored,” Kennedy wrote.

Roberts in his opinion addressed the Scalia and Kennedy dissents, writing, “A reader of Justice Kennedy’s dissent could be forgiven for concluding that the Court has just upheld a latter-day version of the Alien and Sedition Acts, approving ‘state censorship’ that ‘locks the First Amendment out,’ imposes a ‘gag’ on candidates, and inflicts ‘deadweight’ on a ‘silenced’ public debate. . . . But in reality, Canon 7C(1) leaves judicial candidates free to discuss any issue with any person at any time. Candidates can write letters, give speeches, and put up billboards. They can contact potential supporters in person, on the phone, or online. They can promote their campaigns on radio, television, or other media. They cannot say, ‘Please give me money.’ They can, however, direct their campaign committees to do so. Whatever else may be said of the Canon, it is surely not a ‘wildly disproportionate restriction upon speech [as claimed by Scalia].’”

Justice Samuel Alito also dissented, saying the canon was not narrowly tailored.

“Indeed, this rule is about as narrowly tailored as a burlap bag. It applies to all solicitations made in the name of a candidate for judicial office — including, as was the case here, a mass mailing. It even applies to an ad in a newspaper. It applies to requests for contributions in any amount, and it applies even if the person solicited is not a lawyer, has never had any interest at stake in any case in the court in question, and has no prospect of ever having any interest at stake in any litigation in that court,” Alito wrote. “If this rule can be characterized as narrowly tailored, then narrow tailoring has no meaning, and strict scrutiny, which is essential to the protection of free speech, is seriously impaired.”

Justice Ginsburg wrote a concurring opinion that reiterated her dissent from Republican Party of Minnesota v. White, 536 U.S. 765, 803 (2002), that “exacting scrutiny” should not be applied to state regulations in judicial races. She also said, in a part of her opinion also endorsed by Justice Breyer, that states should have “substantial latitude” in enacting “campaign finance rules geared to judicial elections.”

“Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence. Numerous studies report that the money pressure groups spend on judicial elections ‘can affect judicial decision-making across a broad range of cases,’” Ginsburg wrote, citing one of the amicus briefs in the case.

[Revised: 01-23-2018]