SCOTUS for law students: Financing judicial elections

The Supreme Court has stepped into the center of a divisive issue: whether, consistent with the First Amendment, states that elect some or all of their judges may prohibit the candidates from directly soliciting campaign funds.

The case of Williams-Yulee v. Florida Bar, scheduled for oral argument on January 20, 2015, will test how far the Supreme Court is willing to go in pushing the boundaries of the First Amendments guarantee of freedom of speech and throwing off the restraints of campaign finance regulation.

The case has important implications for law students interested in First Amendment, legal and judicial ethics, political law, and the governance of the judiciaries throughout the United States.

According to both sides in the dispute, thirty-nine states elect at least some of their . Over half of those states at least twenty have adopted a variation of the American Bar Associations Model Code of Judicial Conduct, which includes a provision that prohibits candidates for judicial office, incumbent judges and challengers from directly soliciting campaign funds.

The issue is not whether judges and their challengers may raise campaign funds. There seems to be general agreement that even judicial candidates need campaign committees with sufficient resources to mount an election effort. Rather, the question is whether the candidates themselves should be able to solicit funds, which is often an effective way of promoting name recognition and raising the cash necessary to run a campaign.

Federal appeals courts and state supreme courts are deeply split about whether restrictions on direct solicitation by candidates are permissible under the First Amendment. According to the petition filed in the Supreme Court, the U.S. Courts of Appeals for the Third and Seventh Circuits and the state supreme courts of Oregon, Florida, and Arkansas have upheld ethical rules restricting judicial candidate solicitation; the U.S. Courts of Appeals for the Sixth, Eighth, Ninth, and Eleventh Circuits have invalidated similar rules. The Florida Bar agreed with this description of the disagreement and, although it prevailed in the Florida Supreme Court, urged the U.S. Supreme Court to hear the case because of the split. That divide is what the Supreme Court will try to resolve.

The case presents a conflict between the need to protect the integrity and impartiality of the judiciary and the role of the First Amendment in protecting political speech from government interference. At the heart of that conflict is the volatile question, one that has been of considerable interest to the current Supreme Court, of how campaign funds fit into the framework of political speech.

In 2002, the Supreme Court struck down a restriction on speech in judicial campaigns, finding that a rule which prohibited candidates from announcing positions on controversial issues violated the First Amendment. That ruling, Republican Party of Minnesota v. White, involved political statements rather than campaign funds, but it brought judicial elections under the same First Amendment framework that applies to other political speech.

More recently, under Chief Justice John Roberts, the Court in the name of freedom of speech has expanded the ability of corporations and unions to spend funds directly in elections in Citizens United v. FEC and less than a year ago invalidated limits Congress placed on the overall amount that individuals may spend in a two-year federal election cycle in McCutcheon v. FEC.

The case now before the Court arose in a Florida judicial election. In 2009, Lanell Williams-Yulee ran for a position as judge in Hillsborough County, which is in the Tampa area. She sent out a general fundraising letter which she signed herself. When the Florida Bar filed a complaint against her, Williams-Yulee noted that the Florida ethical rule referred to elections between competing candidates, and since she had no opponent when she sent the letter, she did not think the rule applied. A state referee appointed to decide the issue said her mistake did not excuse the violation of the rule and suggested she be issued a reprimand and pay the costs of the disciplinary proceeding.

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SCOTUS for law students: Financing judicial elections