The Judicial Ethics Forum (JEF)

When the Florida Bar bans lawyers or judges from personal solicitations, the Supreme Court will, in a five-to-four decision, uphold the ban against the resulting First Amendment challenge.  Or so the Florida Bar now reasonably believes, having twice won in this fashion.  Twenty years ago, the Bar first won in Florida Bar v. Went For It, Inc. (concluding that the “Florida Bar’s 30-day restriction on targeted direct mail solicitation of accident victims and their relatives withstands [First Amendment] scrutiny”).  The second and (for our purposes) much more relevant case is now Williams-Yulee.  The Supreme Court of the United States has just upheld Florida’s ban on personal solicitation of judicial campaign contributions.  Joined by the Court’s so-called “liberal wing,” Chief Justice Roberts wrote the opinion of the Court blessing the ban.  (Florida’s ban on judicial candidates personally soliciting money is based on the 1972 ABA Code of Judicial Conduct, and 29 other states have similar bans based on the 1972, 1990, and 2007 ABA Model Codes; for further background on the Williams-Yulee case, click here and here.)  The opinion is partly a plurality opinion because Justice Ginsburg refused to join the part of the opinion concluding that strict (“exacting”) scrutiny applies to this judicial election regulation, which prohibits only a very narrow category of speech (i.e., a judicial candidate’s personal request for campaign money).  Thus, the Court effectively lacks a holding on the applicable standard of First Amendment scrutiny.  Five members of the Court (including Ginsburg), however, concluded that the canon is one of the “rare” regulations surviving strict scrutiny analysis.  The majority opinion will further provide critical support against other challenges to campaign-trail regulations in judicial elections, including the Ninth Circuit’s upcoming en banc decision in Wolfson (which had been stayed pending the opinion in Williams-Yulee).  The Ninth Circuit’s now-vacated panel opinion had relied largely on a distinction between (non-judge) judicial candidates and sitting judges — a distinction on which the Williams-Yulee opinion places absolutely no weight.

In Williams-Yulee, the Chief Justice made many fascinating and likely long-lasting distinctions, and three key, interrelated distinctions are highlighted below:

(1) On the nature of judges (vis-a-vis political officials):

Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. . . . [A] State has compelling interests in regulating judicial elections that extend beyond its interests in regulating political elections, because judges are not politicians.

(2) On the regulation of judicial elections (v. other elections):

The parties devote considerable attention to our cases analyzing campaign finance restrictions in political elections. But a State’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections. As we explained in White, States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. . . . Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such “responsiveness is key to the very concept of self-governance through elected officials.” McCutcheon v. Federal Election Comm’n, 572 U. S. ___, ___ (2014) (plurality opinion) (slip op., at 39). The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must “observe the utmost fairness,” striving to be“perfectly and completely independent, with nothing to influence or controul him but God and his conscience.” Address of John Marshall, in Proceedings and Debates of the Virginia State Convention of 1829–1830, p. 616 (1830). As in White, therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here.

(3) On judges’ solicitations (v. others’ solicitations):

[In her argument that the canon is fatally underinclusive,] 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. 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 single handedly 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. . . .

The vast majority of elected judges in States that allow personal solicitation serve with fairness and honor. But “[e]ven if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributions is likely to undermine the public’s confidence in the judiciary.” White, 536 U. S., at 790 (O’Connor, J., concurring). In the eyes of the public, a judge’s personal solicitation could result (even unknowingly) in “a possible temptation . . . which might lead him not to hold the balance nice, clear and true.” Tumey v. Ohio, 273 U. S. 510, 532 (1927). That risk is especially pronounced because most donors are lawyers and litigants who may appear before the judge they are supporting. See A. Bannon, E. Velasco, L. Casey, & L. Reagan, The New Politics of Judicial Elections: 2011–12, p. 15 (2013).

Further reading: The news coverage of this blockbuster and (result-wise) surprising opinion is mountainous.  Some great notes on the opinions (including the dissents) are available at the New York Times, Huffington Post, Election Law Blog, SCOTUS Blog, and Wall Street Journal, just to name a few.