Under the watchful eye of Chief Justice John Roberts, the conservative majority on the U.S. Supreme Court has used the First Amendment to radically shift our political landscape.
It did so first in 2010, with the declaration under Citizens United v. Federal Election Commission (FEC) that corporations have First Amendment freedom of speech rights and by striking limitations on direct corporate political spending. It followed that decision with last term’s McCutcheon v. FEC, which struck similar limitations on individual spending limits, and to a lesser degree in SBA List v. Driehaus, by seriously undermining state efforts to regulate truth in political advertising.
Now the Court is considering the role money plays in judicial elections.
Unlike federal judges, who are appointed and approved to their posts, 39 states elect their judges in some way. Some judges are first appointed and then face “retention” elections, while others run for a spot on the bench the way other candidates run for a spot in their state assembly. But unlike legislators, who as politicians are by definition supposed to be ideologues, judges are supposed to be impartial advocates. And that presents its own set of challenges when regulating judicial elections, especially when the issue of campaign contributions, donations, and endorsements come in.
Roe is gone. The chaos is just beginning.
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That’s why, even in states that provide for partisan judicial elections, nearly every state that elects its judges has adopted some form of the prohibition on judicial candidates personally soliciting campaign contributions under the American Bar Association’s Model Code of Judicial Conduct. Florida is one such state. Canon 7C(1) of the Florida Code of Judicial Conduct states, in part:
A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy.
In 2009, Lanell Williams-Yulee decided to run for county court judge in Hillsborough County, Florida. Shortly after she registered as a judicial candidate, she drafted and signed a mass-mail letter announcing her candidacy and seeking campaign contributions. According to Williams-Yulee, the solicitation was an oversight and the result of her not proofreading her campaign literature closely enough. The Florida Supreme Court publicly sanctioned and fined Williams-Yulee for violating Canon 7C(1), rejecting her claim that the rule violates the First Amendment; now
she no doubt hopes the Roberts Court agrees with her that it does.
By objective standards, this is a case the Supreme Court should hear. There’s deep division in the federal courts as to whether these kinds of prohibitions violate the First Amendment. Here, the Florida Supreme Court held that Canon 7C(1) is narrowly tailored to achieve the compelling state interest of ensuring an impartial judiciary. The U.S. Court of Appeals for the Seventh Circuit reached similar conclusions in cases challenging personal solicitation bans on judicial candidates in Indiana and Wisconsin. The Third Circuit upheld Pennsylvania’s ban while state supreme courts in Arkansas and Oregon upheld those state’s bans. Meanwhile, four other federal courts of appeals have held that personal solicitation bans fail strict scrutiny and, therefore, violate the First Amendment. That’s precisely the kind of confusion the Supreme Court was designed to resolve.
But as is always the fear with the Roberts Court, an invitation to settle a dispute among the federal courts is usually seen by the conservative majority as an opportunity to advance its anti-regulatory agenda, and all the better if it can do so via the Constitution. But this case is the perfect candidate (pardon the pun) for the Roberts Court to do for judicial elections what it did for elections generally: further open the pipeline of money.
The gist of Williams-Yulee’s argument is that these kinds of regulations are ineffective because they both regulate too much and too little speech at the same time. Williams-Yulee argues that they do too little in that a candidate herself can’t solicit, but
her election committee can on her behalf. On the other hand, such regulations do too much because they prevent judicial candidates from even sending mass mailings with their name on them under a stated concern that the recipients will feel compelled to either contribute to the campaign or face possible mistreatment should they appear before the judge in the future. Furthermore, Williams-Yulee argues, these kinds of regulations often benefit incumbent judges and thus put otherwise good challengers at a disadvantage. Framed this way, Cannon 7C(1) is precisely the kind of government overreach and feigned disrespect for voters that the conservative justices on the Roberts Court sneered at in both Citizens United and McCutcheon.
While not perfect by a long shot, judicial cannons like Florida’s have at least erected more barriers to flatly politicizing the judicial electoral process than exist generally for candidates. Given the increasingly negative role political spending plays in judicial elections and the reality that conservatives are spending more and more money in judicial elections every cycle, every bit that helps stem political spending from completely taking over judicial elections counts. And while I usually dislike a “slippery slope” argument, it’s not a reach to say that this could go from personally soliciting donations to personally soliciting endorsements. That’s what Peggy Rowe-Linn of West Palm Beach, Florida, did. Rowe-Linn is one of three candidates running to be a circuit judge in Palm Beach County, but she was the only candidate to have the endorsement of Personhood Florida ProLife PAC after she signed a pledge to support the political action committee’s issues.
I’ve already made one slippery-slope argument, I’ll go ahead and make another: The Roberts Court has largely succeeded in helping deliver some of the most devastating blows to civil rights and the integrity of the democratic process—not in grand, sweeping decisions, but incrementally. If one campaign restriction on judicial candidates falls under the Roberts Court because it violates the First Amendment, there’s a pretty good chance most will. And where would that leave us? Public confidence in the integrity of the civil justice system is already plummeting, matching most Americans’ feelings about the failure of our criminal justice system.
There’s a real danger to buying into the simplicity of the “they’re just a formality, they don’t really work” argument that the people attacking personal solicitations bans make. First of all, the regulations obviously work because Williams-Yulee was reprimanded for violating Florida’s personal solicitation ban. But more importantly, as the Peggy Rowe-Linn candidacy demonstrates, the problem isn’t finding the perfect balance for regulating judicial elections; it’s having them at all. There is no perfect way to staff our judiciary, but the evidence is inescapable that the more money that goes into electing judges, the worse our state courts perform.
The Roberts Court has not yet decided if it will hear Williams-Yulee’s case.