The Supreme Court has stepped into the center of a divisive issue: whether, consistent with the First Amendment, states that elect some or all of their judges may prohibit the candidates from directly soliciting campaign funds.
The case of Williams-Yulee v. Florida Bar, scheduled for oral argument on January 20, 2015, will test how far the Supreme Court is willing to go in pushing the boundaries of the First Amendment’s guarantee of freedom of speech and throwing off the restraints of campaign finance regulation.
The case has important implications for law students interested in First Amendment, legal and judicial ethics, political law, and the governance of the judiciaries throughout the United States.
According to both sides in the dispute, thirty-nine states elect at least some of their . Over half of those states – at least twenty – have adopted a variation of the American Bar Association’s Model Code of Judicial Conduct, which includes a provision that prohibits candidates for judicial office, incumbent judges and challengers from directly soliciting campaign funds.
The issue is not whether judges and their challengers may raise campaign funds. There seems to be general agreement that even judicial candidates need campaign committees with sufficient resources to mount an election effort. Rather, the question is whether the candidates themselves should be able to solicit funds, which is often an effective way of promoting name recognition and raising the cash necessary to run a campaign.
Federal appeals courts and state supreme courts are deeply split about whether restrictions on direct solicitation by candidates are permissible under the First Amendment. According to the petition filed in the Supreme Court, the U.S. Courts of Appeals for the Third and Seventh Circuits and the state supreme courts of Oregon, Florida, and Arkansas have upheld ethical rules restricting judicial candidate solicitation; the U.S. Courts of Appeals for the Sixth, Eighth, Ninth, and Eleventh Circuits have invalidated similar rules. The Florida Bar agreed with this description of the disagreement and, although it prevailed in the Florida Supreme Court, urged the U.S. Supreme Court to hear the case because of the split. That divide is what the Supreme Court will try to resolve.
The case presents a conflict between the need to protect the integrity and impartiality of the judiciary and the role of the First Amendment in protecting political speech from government interference. At the heart of that conflict is the volatile question, one that has been of considerable interest to the current Supreme Court, of how campaign funds fit into the framework of political speech.
In 2002, the Supreme Court struck down a restriction on speech in judicial campaigns, finding that a rule which prohibited candidates from announcing positions on controversial issues violated the First Amendment. That ruling, Republican Party of Minnesota v. White, involved political statements rather than campaign funds, but it brought judicial elections under the same First Amendment framework that applies to other political speech.
More recently, under Chief Justice John Roberts, the Court in the name of freedom of speech has expanded the ability of corporations and unions to spend funds directly in elections in Citizens United v. FEC and – less than a year ago – invalidated limits Congress placed on the overall amount that individuals may spend in a two-year federal election cycle in McCutcheon v. FEC.
The case now before the Court arose in a Florida judicial election. In 2009, Lanell Williams-Yulee ran for a position as judge in Hillsborough County, which is in the Tampa area. She sent out a general fundraising letter which she signed herself. When the Florida Bar filed a complaint against her, Williams-Yulee noted that the Florida ethical rule referred to elections between “competing candidates,” and since she had no opponent when she sent the letter, she did not think the rule applied. A state referee appointed to decide the issue said her mistake did not excuse the violation of the rule and suggested she be issued a reprimand and pay the costs of the disciplinary proceeding.
The Florida Supreme Court affirmed the discipline. The state court went to the heart of the issue when it found that the Florida ethical rule involved political speech that was covered by the First Amendment. As the Florida court said, First Amendment protection for political speech requires that any efforts to regulate it must withstand the highest level of constitutional scrutiny, called strict scrutiny. Under this test, speech is upheld unless the government can justify regulation with a compelling interest and a narrowly tailored approach to carrying out that goal.
The Florida Supreme Court found that the compelling reason for the rule was protecting the impartiality of the courts, and that this was, indeed, a sufficient justification. The state court also found that the Florida rule was narrowly tailored because it barred direct candidate solicitation, which creates the greatest appearance of lack of impartiality, and still permitted fund raising by the campaigns of judicial candidates.
In the U.S. Supreme Court, lawyers for Williams-Yulee argue that the scope and operation of Florida’s rule raise serious questions about its effectiveness in reaching its intended goal. While a judicial candidate may not solicit funds, they note, the candidate may find out who donated to the campaign and may even personally thank those individuals. This undermines the argument that the rule is to preserve impartiality, they argue.
They contend, moreover, that there are more limited and effective ways of fostering judicial impartiality. The state could impose contribution limits on judicial campaigns and could require recusal by judges about whom there may be concerns over impartiality as a result of campaign donations.
The Florida Bar has not yet filed its brief. But in its response to the petition, Florida Bar officials said they favored the approach of Judge Frank Easterbrook of the Seventh Circuit in Bauer v. Shepard in 2010. Judge Easterbrook considered provisions of Indiana’s judicial ethics rules, including a direct solicitation ban. He noted that the Seventh Circuit had already voiced concerns that solicitation by judicial candidates who become judges has “the potential for actual or perceived mutual back scratching, or for retaliation against attorneys who decline to donate.”
There are multiple overlays, reflected in some of the briefs, that provide different ways of thinking about this case. First, there is the larger societal debate. Advocates of judicial elections say they provide democratic accountability to the voters and credibility at the local level for state courts; opponents say that elections are inconsistent with the need for the judiciary to remain impartial and independent of political pressures and public trends. Then there is the strand of First Amendment argument. Some lawyers say that, although they are no fans of judicial elections, if a state wants to elect judges, the free speech guarantee must apply with the same force as in other political campaigns. Still others, finally, favor judicial elections for their direct accountability to the voters and also believe in the full protections of the First Amendment for judicial candidates.
With so many different angles, it may take a scorecard to sort out the views and motivations of different advocates. But rest assured, the Justices will likely have their scorecards close by in January. And a significant ruling, one way or the other, is almost certain to result from the case.
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