Symposium: Yes, it can hurt just to ask

The Supreme Court’s opinion in Williams – Yulee v. Florida Bar has left Court watchers and legal scholars with a bad case of whiplash. The Court held that Florida did not violate the First Amendment by enforcing its rule of judicial conduct prohibiting judicial election candidates from personally soliciting campaign contributions. Let’s explore why Chief Justice Roberts’s opinion for the majority has the legal cognoscenti reaching for their ice bags.

For generations, the Court has not hesitated to wield the First and Fourteenth Amendments, and other constitutional provisions, to protect citizens’ right to cast an effective, undiluted vote at the polls and to speak about matters of public concern around elections without the fear that entrenched political majorities may stifle disfavored viewpoints through legislative and administrative schemes.

Addressing state-based restrictions on party and candidate participation in elections, the Court has been clear that the rights of voters are closely linked with the rights of candidates. In Bullock v. Carter (1972), the Court invalidated the Texas candidate filing fee system in part because it adversely affected the rights of voters. Anderson v. Celebrezze (1983) overturned Ohio’s early candidate filing deadline because it placed an unconstitutional burden on the voting and associational rights of the candidate’s supporters. In Eu v. San Francisco Democratic Committee (1989), the Court sustained a free speech attack on a California law banning party central committees from endorsing candidates in partisan primary elections. The Court noted that the restrictions on the political parties infringed the rights of party members to speak freely and inform themselves about election matters, and did not advance a compelling state interest in doing so.

Political money entered the political rights conversation in the Watergate era. In Buckley v. Valeo (1976), the Court concluded that federal statutory restrictions on contributions and expenditures in federal elections implicated free speech concerns. However the Court opined that while both types of transactions involved some degree of communication, only the limits on expenditures were invalid. The Court upheld most of the contribution limits against a First Amendment challenge. In First National Bank of Boston v. Bellotti (1978), the Court overturned, on free speech grounds, a Massachusetts statute that prohibited corporations from contributing or spending money to influence voters on election issues. In Consolidated Edison Co. of New York v. Public Service Commission (1980), the Court held that New York could not prevent a corporation from making many kinds of political expenditures to advance its political interests, including paying for customer bill inserts explaining the company’s support for nuclear power.

The Court, in discussing these basic principles, never attempted to create rules for special treatment of state judicial candidates or elections. For example, in Gray v. Sanders (1963), the Court invalidated Georgia’s county unit system for vote counting in the Democratic primary for nomination of United States senator and statewide officers, including justices of the Supreme Court. In Chisom v. Roemer (1991), the Court noted that the Voting Rights Act of 1965 was intended to be coextensive with the Fifteenth Amendment and relied on that statute to invalidate Louisiana’s system for electing the seven justices of the state supreme court. The fact that, under the challenged statute, Louisiana was electing judges, rather than other government representatives and officials, did not entitle the state to a different answer.

Before Watergate, state judicial elections, for the most part, were small-ball operations. Establishment law firms, bar organizations, and blue-ribbon panels of advisors would identify their preferred nominees for judicial office. State executives largely would comply with favorable appointments to the bench. Firms and bar leaders would make polite, modest contributions to the campaigns of the incumbents running for election or reelection, most of whom faced little or no opposition. A death or retirement of an incumbent judge would start the cycle over again. For the most part, the judges chosen through this common practice would serve ably, neutrally and, frequently, with distinction. In the rare case in which an incumbent judge could not or would not do the job, the election process offered the neatest solution.

Pre-Watergate judicial ethical canons were just that — suggestions for virtuous behavior that were admonitory but non-binding. For the most part, the same was true of lawyer ethical codes. Even after a serious scandal in Florida in the early 1970s involving multiple judges on the take, the American Bar Association responded with a recommendation for only a somewhat stricter set of recommended behaviors, including a ban on personal solicitation of campaign contributions. Many state courts went along with the ABA recommendations, and some made the suggestions mandatory, because they had little effect on the status quo. Because most local judges never had to campaign for reelection, few gave a second thought to the legal validity of the ABA’s recommendations, such as the ban on the solicitation of contributions by candidates for judicial office. Judicial elections went ahead as quiet affairs, as they had for decades.

Change was in the wind, however. In the 1980s, political actors and organizations began to recognize that, in contrast to the federal system where judges were protected by life tenure, the state court judges were an easy mark. If a judge displeased a powerful political player with an adverse ruling, the judge could be taken out of office at the next election. Judges were woefully underfunded and, to a degree, politically naive. They had little or no response to attack ads with mass media circulation, believing in some cases that the voting public would reward them with reelection for their silent dignity in the face of shrill, exaggerated criticism. Bar organizations too were slow to respond in defense of their incumbent judiciary. California lost three dedicated supreme court justices, two merely because they were associated in advertisements with several controversial death penalty reversals. Tennessee lost a hard-working justice because she authored a narrow majority opinion that overturned a controversial judgment of death.

Other examples could be cited, but the facts in Caperton v. A. T. Massey Coal Co. (2009) illustrate the kinds of glaring abuses of the state judicial election system that were taking place, in varying degrees, in a number of states. Caperton involved an effort by a millionaire corporate owner to replace a perceived judicial opponent on a state supreme court with a more favorable judge through an expensive election campaign featuring slick attack ads and false charges. The newly chosen judge refused to recuse himself from the very case that had lead to the electoral challenge: a $50 million verdict against the millionaire benefactor’s company. The blitz worked, at least until the Supreme Court intervened, holding that the facts about the campaign raised an inference that the scheme as a whole denied due process. The decision was five to four, with Chief Justice Roberts writing the principal dissent.

How would the Supreme Court resolve the tension between, on the one hand, the concerns of the establishment bar that state court judges were facing a hopeless tsunami of political money and powerful opponents with political agendas that could defeat state court justice and, on the other hand, claims by those same political actors, including corporations, that they simply were exercising the electoral free speech rights that the Court had recognized in its recent cases? The answer came in Republican Party of Minnesota v. White (2002).

In Republican Party of Minnesota, a candidate for a seat on the Minnesota Supreme Court challenged a rule of judicial conduct, known as the “announce” clause, that prohibited candidates for judicial office from expressing their views on disputed issues. Speaking through Justice Antonin Scalia, the Court held that the rule controlled political speech and, therefore, could survive only if it was narrowly tailored to serve a compelling state interest. The Court listed all the reasons that the state offered in defense of the rule, including that it was necessary to guard against prejudgment of issues, to protect parties from judicial bias, and to preserve a judicial “open mind” in future litigation. One by one, and for differing reasons, the Court explained why each of the proffered reasons did not survive scrutiny under the applicable test and, moreover, why the rule was fatally under-inclusive. A concurrence by Justice Sandra Day O’Connor explained that, if the state had a problem with any bias that might result from free expression by judicial candidates, the state was itself to blame for choosing to elect its judges.

The message from the Republican Party of Minnesota case is that, if a state chooses to select its judicial officers by a public election, the governing rules will be those that traditionally apply in an American election, including those that protect a candidate’s freedom to communicate with potential supporters. That case could not be clearer in precluding barriers to communication between judicial candidates and their supporters about political topics.

The Court purports to follow a host of rules (stare decisis, for one) designed to show the world that it consistently and dependably follows its precedents. But the Court’s purported devotion to that principle took a hit below the waterline with Wednesday’s decision.

In his opinion, Chief Justice Roberts writes that “Judges are not politicians, even when they come to the bench by way of the ballot.” That bromide is hardly a quote from Aristotle, Locke, or Madison. Judges are state officials charged with the proper exercise of the state’s judicial power, and the people choose those state officials in public elections. The public expects judges to decide cases neutrally and in accordance with applicable law. But, when judges are standing for election, the public properly assumes that judges will respond to questions and concerns, explain why they deserve the public’s vote, and otherwise communicate in a way that respects the electoral environment in which they are operating. That is the premise for an electoral system for public officers, including judges. If those communicative responsibilities are “political,” that is because the voters want it that way, and in a democratic society, they are in control.

Williams-Yulee and the Florida Bar agreed that Canon 7C(1) restricted the judicial candidate’s speech on the basis of its content. They hardly could do otherwise. A candidate’s solicitation of funds from supporters during a campaign is perhaps the most critical form of candidate speech in every election. That question will allow the candidate to learn whether a campaign is viable at all and, if so, what kind of campaign is possible. Money is the “mother’s milk” of politics, and that is no less true for judicial candidates running for judicial office. Properly viewed, a request for financial support is core political speech for all political candidates, including judges.

The Court held that the Florida no-solicitation rule was narrowly drawn to serve a compelling state interest in preserving public confidence in the integrity of the judiciary. That certainly is a compelling state interest. According to the Court, the rule assured the public that those selected for judicial office had not personally asked for money from others before assuming office. But consider the Court’s application of the narrow tailoring principle here. The rule allowed the candidate to form a finance committee to act on behalf of the candidate, and permitted the committee members to solicit campaign funds on behalf of the candidate. Under that a scheme, the judicial candidate is completely aware of every contribution that the committee receives, and presumably also is aware of every potential donor who declined to give. The rule explicitly authorized the candidate to send thank you notes to the donors. As the candidate, donors, and decliners know fully well, that indirect system allows a candidate who is so inclined to favor and disfavor the solicited parties based on their contribution choices to the same extent as would a direct solicitation system. From the standpoint of the solicited party, the pressure to donate and the supposed fear of retaliation for declining to donate is substantially the same under each system. The suggestion by Chief Justice John Roberts that the personal involvement of the candidate in making a solicitation is a critical and dispositive difference is an ostrich-like response to the rule’s failure to protect the state’s critical interest at all.

Had the majority concluded instead that the Florida rule was not narrowly tailored to serve a critical state interest, it would not have been forced to recognize a free-standing right for candidates to solicit money in all judicial elections. Insufficient narrow tailoring would mean that state rule makers must reconsider their approach to the regulation in question, including perhaps introducing different procedures that more effectively secure the public’s confidence in judicial integrity. That approach seems more constitutionally sound than simply shutting down a judicial candidate’s free speech to voters about a central political issue.

The majority too quickly elided past one potential solution: recusal. It incorrectly assumed that a recusal requirement would mean that, in every single case, solicited political donations of any size would compel judge recipients to recuse themselves from every case involving the donors or, worse, every lawyer in the donors’ law firms. That is an erroneous straw-man argument designed to make the discussion topic look foolish. But recusal obligations (with, perhaps, other complementary procedures) in judicial rules can be tailored to meet the public’s expectation of a fair bench without hamstringing court administrators and judicial caseloads. Perception problems arise most commonly from large donations by certain contributors (lawyers, firms, well-heeled clients and the like), but not by family members and friends who never could appear before state jurist recipients anyway. Rules calling for mandatory recusal in every instance in which judicial neutrality might reasonably be questioned would safeguard the public without censoring candidate speech. Other supplemental rules compelling the prompt and detailed disclosure of every contribution from any party would allow litigants, when appropriate, to make their record that due process requires recusal or other remedies. The majority’s hasty answer overlooked the ability of state rule drafters to develop stringent and effective recusal procedures that would protect the public and the courts without offending the right of judicial candidates to speak to their supporters without legal restrictions on the substance of their political speech.

This sort of litigation might better have started in state court, where strong state constitutional free speech provisions would play a more prominent role in the analysis.  For example, a state guarantee of a right to “speak, write and print freely on any subject whatever [subject only for responsibility for] abuse of this right” (as in Oregon’s Article I, section 8) may require a different answer than that given by Chief Justice Roberts.  The judicial canon is an explicit limit on speech based on its content, and there is no case to be made that a campaign solicitation, even by a judge, represents an “abuse” of free speech.  State justices currently may not appreciate that their own judicial solicitation rules are unconstitutional under their state charters, but that is exactly where their strong state free speech caselaw may point.

The Court’s questionable approach to the narrow tailoring principle is doubly worrisome because state judicial conduct codes are chock full of other limitations on candidate speech, such as whether judge candidates may disclose their political-party affiliation or state their support for particular laws while on the campaign trail. Cases challenging those restrictions, and others, on free speech grounds may now be in the pipeline. It is anyone’s guess whether those cases will be decided under the rule of Republican Party of Minnesota or its polar opposite, Williams-Yulee, or perhaps some unknown hybrid of those two. The search for a theoretically consistent answer to that question may leave one with yet another pain in the neck.

Robert D. Durham served as an associate justice on the Oregon Supreme Court from 1994 through 2012. He also served for over two years on the Oregon Court of Appeals. While on the Oregon Supreme Court, he chaired multiple court committees charged with the review and revision of the Oregon Code of Judicial Conduct, including rules governing political activity by judge candidates. He holds an LL.M degree in judicial process from the University of Virginia Law School and a J.D. degree from the University of Santa Clara Law School.