Supreme Court Rules For Judicial Fundraising Limits

By John Celock

The U.S. Supreme Court ruled Wednesday morning that certain limits can be applied in political fundraising for candidates for judicial office.

The Court ruled 5-4 in Williams-Yulee v. Florida Bar to uphold a Florida rule that prohibits candidates for state judicial office from directly fundraising for their campaign. The Court ruled that judicial candidates are different from candidates for executive or legislative office, saying that the public puts a certain trust in judges to be impartial in their rulings from the bench.

“Yulee relies heavily on the provision of Canon 7C(1) that allows solicitation by a candidate’s campaign committee. But Florida, along with most other States, has reasonably concluded that solicitation by the candidate personally creates a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee,” Chief Justice John Roberts wrote in the Court’s opinion. “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. Just as inevitably, the personal involvement of the candidate in the solicitation creates the public appearance that the candidate will remember who says yes, and who says no. In short, personal solicitation by judicial candidates implicates a different problem than solicitation by campaign committees. However similar the two solicitations may be in substance, a State may conclude that they present markedly different appearances to the public. Florida’s choice to allow solicitation by campaign committees does not undermine its decision to ban solicitation by judges.”

The case centered around a complaint from the Florida Bar against Lanell Williams-Yulee, who unsuccessfully sought a county court judgeship in Hillsborough County in 2009. At the start of her campaign Williams-Yulee had sent out a letter announcing her candidacy and solicited funds in an early fundraising drive to kick off her run. The Florida Bar filed the complaint saying that Williams-Yulee had violated a Florida judicial rule barring judicial candidates from directly fundraising for their campaigns. Florida judicial candidates are allowed to fundraise through a campaign committee who does the direct solicitation of funds.

The Florida Supreme Court had reprimanded Williams-Yulee and fined her $1,860 in court costs. She appealed to the U.S. Supreme Court saying that her First Amendment rights allowed her to fundraise for her own campaign.

According to the Brennan Center for Justice, which filed a brief to uphold the Florida rule, of the 39 states that have some form of elected judges, 30 states bar judicial candidates from directly soliciting funds for their campaigns.

In the Court’s opinion, Roberts wrote that the Court did not agree with Williams-Yulee’s contention that the state allowing judicial candidates to write thank you notes to contributors could allow for a bias.

“Likewise, allowing judicial candidates to write thank you notes to campaign donors does not detract from the State’s interest in preserving public confidence in the integrity of the judiciary,” Roberts wrote. “Yulee argues that permitting thank you notes heightens the likelihood of actual bias by ensuring that judicial candidates know who supported their campaigns, and ensuring that the supporter knows that the candidate knows. Maybe so. But the State’s compelling interest is implicated most directly by the candidate’s personal solicitation itself. A failure to ban thank you notes for contributions not solicited by the candidate does not undercut the Bar’s rationale.”

In a concurrent opinion, Justice Ruth Bader Ginsburg wrote that she believes that judicial candidates and judges should be treated differently than other candidates for office. She noted that outside groups have been getting involved in state judicial races, saying that it raised cause for concern. Ginsburg has long supported campaign finance laws during her tenure on the Court.

“States may therefore impose different campaign-finance for judicial elections than for political elections. Experience illustrates why States may wish to do so. When the political campaign-finance apparatus is applied to judicial elections, the distinction of judges from politicians dims,” Ginsburg wrote in her opinion. “Donors, who gain audience and influence through contributions to political campaigns, anticipate that investment in campaigns for judicial office will yield similar returns. Elected judges understand this dynamic. As Ohio Supreme Court Justice Paul Pfeifer put it: “Whether they succeed or not,” campaign contributors “mean to be buying a vote.” Liptak & Roberts, Campaign Cash Mirrors a High Court’s Rulings, N. Y. Times, Oct. 1, 2006, pp. A1, A22 (internal quotation marks omitted).”

Roberts and Ginsburg were joined in the majority by Justices Elena Kagan, Sonia Sotomayor and Stephen Breyer. Justices Anthony Kennedy, Clarence Thomas, Antonin Scalia and Samuel Alito. The opposing justices cited the need for freedom of speech to be used in campaign finance, including in judicial races.

Scalia noted in a dissenting opinion that the rules are too broad, noting that it covers general fundraising appeals along with direct ones. Scalia was joined in the dissent by Thomas.

In the dissent Scalia also wrote that a candidate for judicial office would need money to run a campaign.

“The Court tries to strike a pose of neutrality between appointment and election of judges, but no one should be deceived. A Court that sees impropriety in a candidate’s request for any contributions to his election campaign does not much like judicial selection by the people. One cannot have judicial elections without judicial campaigns, and judicial campaigns without funds for campaigning, and funds for campaigning without asking for them. When a society decides that its judges should be elected, it necessarily decides that selection by the people is more important than the oracular sanctity of judges, their immunity from the (shudder!) indignity of begging for funds, and their exemption from those shadows of impropriety that fall over the proletarian public officials who must run for office.” Scalia wrote. “A free society, accustomed to electing its rulers, does not much care whether the rulers operate through statute and executive order, or through judicial distortion of statute, executive order, and constitution. The prescription that judges be elected probably springs from the people’s realization that their judges can become their rulers—and (it must be said) from just a deep-down feeling that members of the Third Branch will profit from a hearty helping of humble pie, and from a severe reduction of their great remove from the (ugh!) People. (It should not be thought that I myself harbor such irreverent and revolutionary feelings; but I think it likely—and year by year more likely—that those who favor the election of judges do so.) In any case, hostility to campaigning by judges entitles the people of Florida to amend their Constitution to replace judicial elections with the selection of judges by lawyers’ committees; it does not entitle the Florida Supreme Court to adopt, or this Court to endorse, a rule of judicial conduct that abridges candidates’ speech in the judicial elections that the Florida Constitution prescribes.”