Q. I just read that in some states, people running for judicial positions may not seek contributions to their campaigns. This struck me as nonsensical, but the article said that the U.S. Supreme Court recently upheld the prohibition. Is it really the case that states prohibit judicial candidates from seeking campaign contributions? And, why would the Supreme Court allow these prohibitions?
A. You are campaigning for office, but you cannot seek money for your campaign. That would put a bit of a damper on things for our nation’s politicians, wouldn’t it?
Yet, in many states, this is how things are for judicial candidates. While federal judges obtain their seats by appointment, in 39 states judges are elected at the polls. Many of these states prohibit judicial candidates from personally soliciting funds for their campaigns. Why would they do this? Let’s look at the recent Supreme Court case you mention as an example.
The case involved a challenge to Florida ban’s on judicial candidates personally soliciting contributions to their campaigns. In 2009, Lanell Williams-Yulee violated the ban by sending voters a letter announcing her candidacy for a county judge position and asking for contributions to her campaign. When the Florida Bar charged her with a violation, Williams-Yulee argued that as a content-based restriction on speech, the ban violates the First Amendment. The Florida Supreme Court disagreed and Williams-Yulee, who lost her election, was publicly reprimanded and fined.
She appealed to the U.S. Supreme Court which, in a 5-4 decision, rejected her challenge. Chief Justice John G. Roberts Jr., delivering the plurality opinion of the court, began by acknowledging that “[s]peech about public issues and the qualification of candidates for elected office commands the highest level of First Amendment protection.” Therefore, any restriction of speech by a judicial candidate must be “narrowly tailored” to serve what the court deems “a compelling interest.” Passing this test is a “demanding task” accomplished only in “the rare case.” Yet, the court concluded Florida’s ban was just such a case.
What was Florida’s compelling interest? Protecting public confidence in judicial integrity.
“Judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity,” Roberts wrote. This is reflected in the common law judicial oath itself, which binds judges to “do right to all manner of people … without fear or favor.” Florida had permissibly concluded, Roberts reasoned, “that the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.”
But why allow candidates for other political office to seek campaign funds while forbidding judicial candidates from doing the same? The answer, Roberts said, lies in the different roles judges and politicians serve. Politicians are “expected to be appropriately responsive to the preferences of their supporters,” while judges are not.
The ban on requests for funds begs the question of how judges can finance campaigns. Florida, like many states forbidding solicitations by judicial candidates, allows candidates to form campaign committees, which in turn may solicit contributions. In addition, others may solicit contributions on judicial candidates’ behalf.
Given the concerns about judicial integrity, one might wonder how this is any different from allowing judicial candidates to make requests themselves. The answer, Roberts wrote, should be evident to “anyone who has encountered a Girl Scout selling cookies outside a grocery store.” In short, “the identity of the solicitor matters.” When a judicial candidate personally solicits contributions, the stakes are higher because the solicited individual knows the “same person who signed the fundraising letter might one day sign the judgment.”
Joined by three other justices, Justice Antonin Scalia disagreed, citing the absence of any evidence that banning personal requests for contributions substantially improves public trust in judges. Noting that rules against personal solicitations are a relatively recent phenomenon, introduced in the 1970s, Scalia wrote: “The peaceful coexistence of judicial elections and personal solicitations for most of our history calls into doubt any claim that allowing personal solicitations would imperil faith in judges.” Moreover, if judicial candidates may receive campaign contributions, solicit campaign contributions by proxy, know the identity of their campaign’s donors and even send personal thank-you notes to their donors, how does a ban on personal requests for contributions significantly improve judicial integrity?
In the end, the court upheld the bans. In 30 states, judges may not personally request campaign contributions. Perhaps they could have a Girl Scout ask for them instead.
C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to email@example.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.
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