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Robes to riches: Money and judicial elections


The Supreme Court waded into free speech in the context of campaign finance yet again on Tuesday when it heard oral argument in Williams-Yulee v. The Florida Bar. The petitioner, Lanell Williams-Yulee, had initiated a campaign for a judgeship in Florida by sending out a mass-mail fundraising letter asking for donations. Unfortunately for Williams-Yulee, though, Florida’s Code of Judicial Conduct prohibits candidates for judicial office from “personally solicit[ing] campaign funds.” The Florida Bar (the governing organization for attorneys licensed to practice in the state) filed a complaint alleging Williams-Yulee had violated the Code of Judicial Conduct. Williams-Yulee defended her actions by arguing that soliciting donations was protected First Amendment speech, but the Florida Supreme Court held that the restriction survived strict scrutiny review, which is applied to restrictions on speech. First, the restriction serves a compelling governmental interest in avoiding the appearance of any judicial impropriety or quid pro quo. Second, the restriction is narrowly tailored, since judicial candidates may allow separate campaign committees to fundraise on their behalf.

Now in front of the Supreme Court, the case is an interesting study in free speech generally, campaign finance more specifically, and (somewhat surprisingly) judicial expertise. To take the first two issues together: The Roberts Court has been fiercely protective of free speech, striking down restrictions on violent video games, funeral protests, and “crush porn,” among other things. That zeal for protecting speech has extended into campaign finance; the Roberts Court hasn’t yet met a campaign finance restriction that it can tolerate, striking down bans on independent spending by corporations and unions and a limit on total spending per election cycle. Nor has the fact that in many of these campaign finance cases legislators themselves wanted restrictions on fundraising prevented the Court from striking down campaign finance restrictions. Indeed, legislators have made several attempts to pass campaign finance laws, which is why it’s usually a contributor, not the legislator or candidate herself, challenging the campaign finance restriction.

Ironically, this case — in which the candidate is challenging the restriction and had no role in enacting the restriction — may be where the Court draws the line, upholding the ban on personal solicitation. Though it’s of course impossible to accurately read the tea leaves of oral argument, several of the Justices seemed skeptical. Justice Ginsburg suggested that a state might have an interest in placing its judiciary “above the political fray.” And Justice Scalia (notably, a member of the 5-Justice majority responsible for striking down campaign finance restrictions in the past) challenged the petitioner’s attorney by noting that “there’s stuff we don’t let judges do that we let other people do.” The Court’s opinion, expected by late June, should be an interesting read.

Maybe more interesting, though, is an issue left lurking in the shadows. Though not addressed at oral argument in the U.S. Supreme Court, the Florida Supreme Court’s opinion made mention of the differing approaches taken by state and federal courts. Specifically, the Florida court explained that a majority of states (most of which have elected judges) and the American Bar Association have restrictions on judicial candidates directly soliciting donations. But more importantly, “every state supreme court that has examined the constitutionality of comparable state judicial ethics canons” has found them constitutional. By contrast, federal courts of appeals, “whose judges have lifetime appointments and thus do not have to engage in fundraising,” as the Florida court noted, are split on the constitutionality of such provisions. Which raises the question — are federal judges, gifted as they are with lifetime tenure, in the best position to be second-guessing a state’s decision that campaign finance restrictions are necessary to preserve the appearance of judicial impartiality (or whatever other justification a state might have for such a restriction)?

Nevertheless, that didn’t stop the Justices from closely examining Florida’s justifications for the rule and whether its purposes were actually served. For example, Chief Justice Roberts asked, “Is there really…the prospect of the appearance of partiality if you have a radio ad” with the judge soliciting contributions. The strict scrutiny test in this case puts the Justices in an interesting position; it requires that they balance their own notions of judicial integrity and impartiality against the on-the-ground reality of the judicial elections, which they have never experienced. How they evaluate the compelling interest at stake in Florida’s law may do more than tell us about the Court’s vision of the First Amendment; the opinion might also reveal something about the Court’s vision of itself and about the judicial role in an increasingly political world.

Michael Mestitz is the President of the Stanford Law Review. Chelsea Priest is one of the Stanford Law Review’s Managing Editors. Contact them at mmestitz ‘at’ and cayres ‘at’

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