State Judges Fail to Topple Fundraising Bans

     (CN) – A divided U.S. Supreme Court on Wednesday ruled that states can bar judicial candidates from direct, personal solicitation of campaign funds.
     “Judges are not politicians, even when they come to the bench by way of the ballot,” Chief Justice John Roberts Jr. wrote on behalf of the court majority. “A state’s decision to elect judges does not compel it to compromise public confidence in their integrity.”
     The case before the court centered on Lanell Williams-Yulee, who signed a mass-mail fundraising letter in 2009 announcing her candidacy for county court judge in Hillsborough County, Fla. and seeking donations for her campaign.
     The Florida Bar reprimanded her for her actions, saying she violated the state’s code of judicial conduct. In May 2014, the Florida Supreme Court upheld the prohibition on fundraising, holding that such conduct might cause the public to question a judge’s impartiality.
     In seeking review from the U.S. Supreme Court, Williams-Yulee argued that the law has a chilling effect on political speech.
     She also maintained the prohibition is largely irrelevant because while judicial candidates in Florida are denied the ability to directly raise funds for themselves, there’s nothing in Florida law that prevents a candidate’s campaign committee from doing so.
     “It is the general practice of electing judges, not the specific practice of judicial campaigning, that gives rise to impartiality concerns,” her brief said.
     Williams-Yulee also argued the personal solicitation ban favors “incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.”
     The Florida Bar also urged the high court to accept the case, “not only because there is a national need for resolution, but because of the particularly troublesome position in which it places the Florida Bar.”
     During oral arguments before the high court in January, Williams-Yulee’s attorney, Andrew Pincus, of the Mayer Brown law firm, argued that Florida’s ban on direct fundraising by judicial candidates simply address the concerns it is meant to resolve — namely the potential for judicial corruption and bias.
     Although he was repeatedly challenged by Justice Scalia, among others, Pincus argued it was the very fact judges had to seek election at all that created the potential for corruption, not fundraising.
     Arguing on behalf of the Florida Bar, Barry Richard of Greenberg Traurig, said the rule was but a minimal imposition on judicial candidate’s free speech rights, and that states imposing a ban — there are 39 in all — have a compelling interesting in preventing potential quid pro quo corruption.
     That proved to be a compelling argument for Chief Justice Roberts who wrote, “The judiciary’s authority … depends in large measure on the public’s willingness to respect and follow its decisions. As Justice Frankfurter once put it for the court, justice must satisfy the appearance of justice. … It follows that public perception of judicial integrity is ‘a state interest of the highest order.'”
     Roberts was joined in his opinion in full, by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Ruth Bader Ginsburg also joined the opinion, but disagreed with a section that applied “exacting scrutiny” to Florida’s rule.
     Roberts wrote that the court has applied exacting scrutiny to laws restricting the solicitation of contributions to charity, upholding the speech limitations only if they are narrowly tailored to serve a compelling interesting … Applying a lesser standard of scrutiny to such speech would threaten ‘the exercise of rights so vital to the maintenance of democratic institutions. … The principles underlying these charitable solicitation cases apply with even greater force here.”
     Ginsburg contended that state should be given substantial latitude in regulation of judicial elections.
     “‘Judges’ the court rightly recognizes, ‘are not politicians,’ so ‘States may regulate judicial elections differently than they regulate political elections,” Ginsburg wrote. ” … because ‘the role of judges differs from the role of politicians,’ this Court’s ‘precedents applying the First Amendment to political elections [should] have little bearing’ on elections to judicial office.”
     She added, “The Court’s recent campaign-finance decisions, trained on political actors, should not hold sway for judicial elections.”
     Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito Jr. dissented.
     Scalia characterized the Florida rule as a “wildly disproportionate restriction upon speech” and posited that faithful application of court precedent should have made short work of the fundraising ban.
     Instead, he said, “[T]he Court flattens one settled First Amendment principle after another.”

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