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Can judicial candidates solicit donations? Supreme Court to weigh case. (+video)

Thirty states have rules that bar prospective judges from personally requesting campaign money and support, but critics say such rules violate free speech rights. On Tuesday, a case on the subject arrives at the US Supreme Court.

Shortly after deciding to run for an open county judge seat in Florida, Lanell Williams-Yulee did something that is quite common for political candidates: She signed a fundraising letter asking for political support and money.

If Ms. Williams-Yulee had been running for a county commission seat, her mass-mailed solicitation would have sounded no alarm bells. But as a candidate for a judicial office, her request for contributions attracted the attention of lawyers with The Florida Bar.

The association charged her with violating an ethics rule that prohibits judicial candidates in Florida from personally soliciting for campaign funds and support.

In her defense, lawyers for Williams-Yulee challenged the constitutionality of the rule. They argued that Florida’s canon of judicial conduct violates a judicial candidate’s free-speech right to communicate with prospective voters.

The Florida Supreme Court rejected that argument. Williams-Yulee received a public reprimand and was ordered to pay $1,860 in costs. But the dispute didn’t end there.

On Tuesday, Williams-Yulee’s case arrives at the US Supreme Court, where the court’s nine justices will examine whether Florida’s rule of judicial conduct is an acceptable limitation on First Amendment freedoms or is instead an unconstitutional attempt by Florida to muzzle core political speech of incumbent judges and judicial candidates.

The case resonates far beyond Florida. Thirty of the 39 states that elect their judges have enacted similar limits on judicial conduct, barring candidates from personally soliciting and accepting campaign contributions.

“Lanell Williams-Yulee was punished for signing a form letter that both requested support and solicited campaign contributions, and for posting the signed letter on her campaign website,” Washington lawyer Michael Kimberly wrote in Williams-Yulee’s brief to the court.

“There were no face-to-face requests for contributions and no personalized written requests,” Mr. Kimberly said. “The First Amendment prevents Florida from imposing sanctions for that conduct.”

The Florida Bar disagrees. The ethics rule is necessary to safeguard against quid pro quo corruption and the appearance of such corruption, the association’s lawyers said in their brief.

The fear is that a judicial candidate might reward contributing lawyers and other generous supporters whose cases are likely to appear in that judge’s courtroom. And even if a judge doesn’t reward his or her supporters, members of the public might perceive in the arrangement an unfair court system stacked against noncontributors.

“The [US Supreme Court] has consistently recognized that states have a compelling interest in maintaining public confidence in the integrity of the judiciary,” Tallahassee, Fla., lawyer Barry Richard wrote in his brief on behalf of the The Florida Bar.

The Florida rule says in part: “A candidate ... for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds....”

The rule goes on to permit a candidate to set up a campaign committee of individuals who are allowed to solicit support and money on the candidate’s behalf.

The purpose of the rule is to insulate an incumbent judge or a future judge from direct participation in solicitations. Such solicitations could facilitate quid pro quo corruption or the appearance of it.

Mr. Richard said this feature of the Florida rule renders it constitutional because it protects the integrity of the state’s judicial system while also providing a mechanism for the arm’s-length solicitation and receipt of campaign contributions.

Lawyers for Williams-Yulee counter that the Florida rule doesn’t provide real insulation between a candidate and her contributors.

“Although [the rule] prevents a judicial candidate from soliciting donations, the candidate may nonetheless learn the identities of those who have – and have not – donated to her campaign,” Kimberly wrote in his brief. “The candidate may even write thank-you notes to donors.”

The lawyer said the Florida rule “at most creates an illusion of separation between candidate and contributor, which in turn undermines any claim of compelling interest.”

In its decision last May in the Williams-Yulee case, the Florida Supreme Court said that protecting the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary “represent compelling state interests capable of withstanding constitutional scrutiny.”

The state high court added that the solicitation ban was narrowly tailored in a way that protects the state’s interests while also allowing candidates to raise money.

“Under [the Florida rule], the respondent was not completely barred from soliciting campaign funds, but was simply required to utilize a separate campaign committee to engage in the task of fundraising,” the Florida Supreme Court said.

“In other words,” the court continued, “[the Florida rule] is narrowly tailored because it seeks to insulate judicial candidates from the solicitation and receipt of funds while leaving open, ample alternative means for candidates to raise the resources necessary to run their campaigns.”

In 2002, the US Supreme Court struck down a Minnesota law that barred judicial candidates from discussing controversial public issues. That law was designed to uphold the integrity of the court system, but the high court ruled that the First Amendment prevents a state from not allowing candidates to discuss issues of public importance.

Now the question is whether that decision will be extended to include not just discussion of public issues by judicial candidates, but also direct solicitations of campaign money.

In a friend-of-the-court brief, the Brennan Center for Justice noted that campaign contributions to state supreme court races more than doubled from 2000 to 2009. Lawyers and lobbyists were among the top donors.

“Judicial candidates are in a fundamentally different position than candidates for political office,” Randolph Sherman wrote in the Brennan Center brief.

“Politicians are representatives of the people and must be responsive to the popular will,” Mr. Sherman said. “Judges, on the other hand, must uphold the rule of law without regard to the interests of the voters.”

As judicial elections become more expensive, the pressures on judicial candidates to raise money become more intense. Restricting fundraising to a separate committee is a “reasonable and targeted response” to the perception that campaign money might buy influence, the Brennan Center brief says. 

The American Civil Liberties Union is embracing a different perspective. Once a state decides to choose judges via elections, it must not limit candidate speech – even when the candidate is a prospective judge, Robert Corn-Revere wrote in the ACLU’s friend-of-the-court brief.

The case is Williams-Yulee v. The Florida Bar (13-1499).

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