Monday, July 13, 2015

Supreme Court Divided in Judicial Campaign Ruling

By Adam Suess

     In late April, the Supreme Court announced its decision in Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015) -- a case in which the court concluded that Florida’s ban on personal solicitation of campaign funds by judicial candidates, Canon 7C(1) of Florida’s Code of Judicial Conduct, does not violate the First Amendment. Writing for the five-justice majority (and at times a four-justice plurality), Chief Justice John G. Roberts Jr. explained that the content-based ban is a constitutional restriction on speech because it is “narrowly tailored to serve a compelling interest.” Williams-Yulee, 135 S. Ct. at 1665. The case sharply divided the court, which Floyd Abrams, a leading First Amendment lawyer, noted was entirely predictable. It also came as no surprise, he acknowledged, that the case seemingly leaves each of the justices irritated and frustrated with the views of those on the other side.

     Josh Wheeler, the director of the Thomas Jefferson Center for the Protection of Free Expression, explains that the majority opinion is premised on one idea: Judicial campaign speech is different from all other campaign speech. This is so, the chief justice explains, because “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.” Williams-Yulee, 135 S. Ct. at 1667. Accordingly, “States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians.” Id. Politicians are expected to be responsive to their supporters, he notes. Judges are not.

     The principal dissent, authored by Justice Scalia and joined by Justice Thomas, chides the majority for its willingness to relax the Constitution’s guarantee of freedom of speech. “The first axiom of the First Amendment is this: As a general rule, the state has no power to ban speech on the basis of its content. One need not equate judges with politicians to see that this principle does not grow weaker merely because the censored speech is a judicial candidate's request for a campaign contribution.” Id. at 1676 (Scalia, J., dissenting). Yet, in a strained effort to uphold Florida’s ban on judicial campaign speech, “the Court flattens one settled First Amendment principle after another,” the dissent concluded. Id.

     Even on the majority’s own terms, the dissent argues, Florida’s ban cannot stand because it has “nothing to do with the appearances created by judges' asking for money, and everything to do with hostility toward judicial campaigning.” Id. at 1681 (Scalia, J., dissenting). Were it not true, the dissent suggests, Florida’s Code of Judicial Conduct would ban all personal solicitations (which it does not do, See id. at 1681 (Scalia, J., dissenting)*), rather than personal solicitations related to campaigns. The dissent warns that while the majority appears to be indifferent between the appointment and the election of judges, “no one should be deceived.” Id. “A Court that sees impropriety in a candidate's request for any contributions to his election campaign does not much like judicial selection by the people.” Id.

     Chief Justice Roberts’ opinion also drew scorn from Justice Kennedy, a person in whom the chief justice often finds an ally. “By cutting off one candidate's personal freedom to speak, the broader campaign debate that might have followed — a debate that might have been informed by new ideas and insights from both candidates — now is silenced.” Id. at 1683 (Kennedy, J., dissenting).

    The majority countered by pointing out that Florida’s ban strikes a reasonable balance by prohibiting only personal solicitations for campaign contributions — eliminating “the conduct most likely to undermine public confidence in the integrity of the judiciary” — while leaving judicial candidates free to otherwise run effective campaigns in ways that do not detract from the state’s interest, such as raising money through campaign committees, attending campaign functions, and writing thank you notes to campaign donors. Id. at 1668-69. This reality belies the dissent’s conclusion, the majority notes, that Florida’s ban (and the court’s judgment) reflects nothing more than a disdain for elected judges.

     Stetson Law Professor Ciara Torres Spelliscy says that the majority’s concern with judicial candidates “dialing for dollars” is justifiable. The problem is, she notes, Williams-Yulee does not solve the larger problems: the rising cost of running for judicial office and the frequency of judicial rulings falling in favor of campaign contributors. Id. (citing Alicia Bannon et al, The New Politics of Judicial Elections, 2011–12 (L. Kinney and P. Hardin eds. 2013); Joanna Shepard & Michael S. Kang, Skewed Justice 1 (2014), University of California Irvine School of Law professor and election law expert Rick Hasen looks more favorably upon the decision, concluding that it represents “a huge win for those who support reasonable limits on judicial elections.” Rick Hasen, Breaking News and Analysis: #SCOTUS Upholds Ban on Judicial Candidates Personally Soliciting Campaign Contributions, ELECTION LAW BLOG (Apr. 29, 2015,  10:12 EST). Professor Hasen also notes that Williams-Yulee is a win for retired Supreme Court Justice Sandra Day O’Connor, who has been at the forefront of the push for new rules in judicial elections. Id.

     However you see it, Williams-Yulee undoubtedly represents a significant break for the Roberts court on First Amendment cases generally and campaign finance cases specifically. Since Chief Justice Roberts took the helm, the Supreme Court has jealously guarded the right to free speech (See, e.g., United States v. Alvarez, 132 S. Ct. 2537 (2012) (plurality opinion); Brown v. Entm’t Merchs. Assn., 131 S. Ct. 2729, 2734 (2011); United States v. Stevens, 559 U.S. 460, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010)) and has not been shy to strike down limits on political contributions. See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010); McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1440, 188 L. Ed. 2d 468 (2014). Based on this, you might have thought that the court would have done away with Florida’s ban by simply adopting a line from Second Circuit Judge Jose A. Cabranes: “Whatever may be said about whether money is speech, speech is speech, even if it is speech about money." Green Party of Connecticut v. Garfield, 616 F.3d 189, 207 (2d Cir. 2010) (internal quotations omitted). But in the rare case where the chief justice joins the more liberal bloc of the court, the decision came down the other way. As it is, in the words of The New York Times’ Adam Liptak, “judicial candidates can say thank you, but they may not say please.”

* Note: While Florida’s ban precludes a judicial candidate from asking “a lawyer for a few dollars to help her buy campaign pamphlets, it does not prevent her asking the same lawyer for a personal loan, access to his law firm's luxury suite at the local football stadium, or even a donation to help her fight the Florida Bar's charges.”