Will the Supreme Court Let Elected Judges Beg For Cash?

Report Back on Oral Argument in Williams-Yulee

The Supreme Court on Tuesday confronted the question of whether candidates for state judgeships have a free speech right to personally solicit campaign contributions. You can read our analysis of the case here, where we explain that Williams-Yulee v. The Florida Bar is not about free speech, but rather judicial integrity.

The case arises from a decision by the Florida Supreme Court, which found that the First Amendment did not protect a judicial candidate’s circulation of a mass fundraising letter. The issue is arguably nuanced, in that the Florida judicial ethics code, like the American Bar Association’s Model Code of Judicial Conduct, prohibits judicial candidates from engaging in personal solicitation, while allowing campaign committees to raise money. But to put things in perspective – the United States is the only country we know of that allows judges to tap lawyers and potential litigants for campaign cash.

Oral argument was well attended, and the Justices peppered both parties with provoking questions. The Justices focused on where to draw the constitutional line, with Justice Ruth Bader Ginsburg starting the discussing by asking if there was a difference between written and in-person communications, and if different standards should apply in judicial and legislative elections.

Justice Antonin Scalia repeatedly inquired about the state’s interest in protecting “judicial dignity,” observing that “there’s stuff we don’t let judges do that we let other people do. Such as, it’s at least a tradition – I’m not sure whether it’s in any ethical rules, but let’s assume it was in ethical rules – that judges do not respond in op-ed pieces to criticisms of their decisions.”

Similarly, Justice Stephen Breyer underscored that there is an “instinctive” and “intuitive” difference in having a third party request a donation rather than the candidate directly. He and Justice Sonia Sotomayor agreed that the standard response by a lawyer to a judge is always “Yes,” and that, as a result, a direct personal solicitation by a judicial candidate would have a greater impact than a letter circulated by a candidate’s political committee. As Justice Sotomayor explained:

It’s very, very, very rare that either by letter or by personal call that I ask a lawyer to do something, whether it’s serve on a committee, help organize something, do whatever it is that I’m asking, that that lawyer will say no. Isn’t it inherent in the lawyer-judge context that people are going to say yes[?]

[ . . . ]

I can actually see how receiving a signed letter from the judge saying, give, and – or a telephone call or a personal meeting has an incrementally greater impact than a letter. I get – even today I get a whole lot of campaign committee letters, and I just throw them out.

If – if a candidate calls me or reaches out to me, I tell them I can’t talk to them and I can’t give, okay, but I have a reason and an excuse. A lawyer doesn’t have that reason or excuse.

Justice Scalia seemed to agree that a direct solicitation from a judicial candidate is different than a committee fundraising request. “You’d find the same statistics true with respect to political candidates,” he observed, “that they do much better when they – when they put the arm on you personally, rather than having somebody else contact you. I can’t imagine that’d be any different.”

The Court’s inquiry threatens to invalidate 30 state ethics codes barring judicial candidates from direct personal solicitation in their elections.

It is impossible to predict how the Justices will rule. Justice Alito searched for an explanation as to whether the difference between permissible and impermissible behavior in Florida has a significant relationship to any interest that the rule is supposed to serve, such as a greater danger of corruption or the appearance of corruption or bias or coercion. Justice Kennedy recognized that even if a committee were to solicit the money, the judge would know the identity of the donors, thanks to disclosure laws. However, Justice Scalia explained that there is a difference between a judge writing thank-you notes to donors and a candidate’s outright ask for donations: “[I]f you write a thank- you note, you are not a mendicant. You are not going around holding your hat out asking people for money.”

Another major theme was the need to draw a manageable rule, such as a bright line rule that candidates cannot make such requests, rather than having to parse through written statements to distinguish the bounds of permissible behavior.

The Court should recognize that rights protected in the Constitution are not absolute, and that here judicial integrity outweighs any free speech rights of candidates for state judgeships to solicit money for their own election. You can read our analysis about the case here.