Should Judicial Candidates Be Allowed To Solicit Campaign Money?
The U.S. Supreme Court hears arguments Tuesday in a case testing whether states, in the name of preserving judicial impartiality, may bar judicial candidates from personally soliciting campaign contributions.
There was a time when judicial elections were a pretty tame affair, with relatively little money spent, and candidates in most states limited in how they could campaign. Not anymore.
In 2002, the Supreme Court, by a 5-to-4 vote struck down state rules that barred judicial candidates from campaigning about legal issues that might come before them. Justice Sandra Day O'Connor, the deciding vote in the case, later would say she regretted that vote. But she has retired, and a new, more aggressive conservative Supreme Court majority repeatedly has struck down rules — long in place — to limit campaign fundraising for legislative and executive candidates.
Now comes the first challenge to limits specifically aimed at fundraising by judicial candidates.
Thirty-nine states elect some or all of their judges, and most bar all judicial candidates from soliciting campaign contributions personally. Tuesday's case tests that personal soliciting ban in a case from Florida, where judicial election fundraising is supposed to be done by candidate committees, instead of the candidates themselves.
Lanell Williams-Yulee ran for the trial bench in Hillsborough County, Fla. in 2009. She sent out a signed letter to potential contributors seeking money for her campaign and posted a signed appeal on her website. She said she misunderstood the rule. She was reprimanded and fined for the violation.
Williams-Yulee then challenged the personal solicitation ban as a violation of her First Amendment right to free speech, appealing her case all the way to the Supreme Court.
In the high court today, lawyers representing the Florida Bar will defend the personal solicitation ban as necessary to protect two important constitutional values: the impartiality and integrity of the courts, and also the constitutional right to due process of law guaranteed to those who seek justice in court.
Several former chief justices of the Florida Supreme Court have filed briefs supporting the personal solicitation ban, among them Harry Lee Anstead.
"The image I see is a judge in their robes, holding their hand out to a lawyer or to a private company, and cash being passed from one hand to the other," says Anstead.
Not so, says Andrew Pincus, the lawyer for Williams-Yulee: "This is a mass solicitation via a post on an Internet site and via a letter."
While challenging the entire personal solicitation ban, Pincus is seeking to parse it, contending there is a difference between a mass mailing or an internet post, or even a speech to a large group. After all, he notes, contributions are publicly disclosed.
"It's a phony protection," he maintains, "because the judge is going to know who gave and who didn't. So in a way, the prohibition creates an illusion of insulation when there isn't any real insulation."
Gregory Coleman, president of the Florida Bar, counters that it's not so easy to "divide up" a ban on personal solicitation. Either you have one or you don't, and allowing a judicial candidate to personally ask for campaign funds from those who come before the court, he says, "does not look right, it doesn't smell right, it doesn't feel right."
Indeed, how would you draw the line, asks Barry Richard, representing the Florida Bar in the Supreme Court. When does a mailing become a "mass mailing?" And when would an audience be big enough that you legally could make an in-person appeal?
Former chief justice Anstead says that striking down any portion of the personal solicitation ban would be disastrous in Florida, which is just one generation removed from the worst judicial corruption scandal in the state's history — state Supreme Court justices fixing cases on behalf of campaign donors, and even permitting a lobbyist to ghost-write the opinion of the Florida Supreme Court in a public utilities case. In the end, four of seven justices were forced to resign and the state adopted a raft of reforms, including the ban on personal solicitation.
Those challenging the ban, however, contend that making judicial candidates do their fundraising through committees stacks the deck for those with connections.
"That really favors the legal establishment," argues Pincus. "If you're someone who is not a well-connected lawyer, you may not have well-connected people to put on a committee to do the soliciting for you. You may have to send out letters yourself, and why should that be prohibited?"
The Florida Bar replies that there is nothing in the rule that prevents candidates from raising money – they're just prevented from doing it personally.
Pincus has another argument: if the purpose is to prevent corruption, then why are candidates for legislative and executive office permitted to personally solicit campaign contributions?
Because they're different, replies the bar association's Barry Richard.
"They're policymakers and people vote for them and contribute money to them because of the policies that they stand for," says Richard. "In the case of the judicial candidate you have an entirely different concern, which is a requirement for impartiality."
Finally, those challenging the personal solicitation ban argue that if a donation does cause either a conflict or the appearance of impropriety, judges can recuse themselves. In practice however, most experts say that is a nonstarter, because recusal decisions largely are left to individual judges and can cause all kinds of unanticipated problems.
"Trust me, in rural communities they're all getting their contributions from the same pool," says Florida Bar President Coleman. "So you could theoretically run through three, four, five, six judges before you could find one that the lawyer did not contribute to. So it could create, literally, chaos within the system."
Just what role does money play in judicial elections and decisionmaking? Polls show astonishing majorities of the public — as high as 70 or 80 percent or more — think money influences judges. And scholars have found that there is a "strong" relationship between campaign contributions and judicial voting, according to Tracey George, a law and political science professor at Vanderbilt University. She is among a group of scholars who filed a brief surveying the data.
"Money biases — whether consciously or subconsciously — the recipient's subsequent actions," George says. Indeed, she notes, "donors have given to judges who face no opposition, so these donors clearly think there's an impact."
Of course, a ban on personal solicitation may not solve that problem.
"It's true that it is not a perfect way of dealing with it," concedes former chief justice Anstead.
"We're limited to what we can do because of the great value we place in the First Amendment," he explains. "But at least we're doing something."
The question now is whether the Supreme Court thinks that "something" is constitutional, or whether judicial candidates soon will be just like all other candidates — scrambling for campaign cash, in person.
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Transcript
STEVE INSKEEP, HOST:
The U.S. Supreme Court hears arguments today in a case that tests whether an election for a judge is just like any other election. The question is whether judicial elections can have special rules, as many do. Many states try to preserve judicial impartiality by barring judicial candidates from personally soliciting campaign contributions. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: There was a time when judicial elections were a pretty tame affair with relatively little money spent and candidates in most states limited in how they could campaign - not anymore. Special interest money is pouring into judicial elections, and a new conservative Supreme Court majority has repeatedly struck down rules long in place to limit campaign fundraising.
Now comes the first challenge to limits specifically aimed at fundraising by judicial candidates. Thirty-nine states elect some or all their judges and most bar judicial candidates from personally soliciting campaign contributions. Today's case tests that personal soliciting ban in a case from Florida, where all judicial election fundraising is supposed to be done by candidate committees and not the candidates themselves.
Lanell Williams-Yulee ran for the trial bench in Hillsborough County, Florida, in 2009. She sent out a signed a letter to potential contributors seeking money for her campaign. And she posted a signed appeal on her website. For this, she was reprimanded and fined. She then challenged the personal solicitation ban as a violation of her First Amendment right to free speech, appealing all the way to the Supreme Court. In the High Court today, lawyers representing the Florida Bar will defend the ban as necessary to protect two important constitutional values - the impartiality and integrity of the courts and also the constitutional right to due process of law, guaranteed for those who come before the courts seeking justice. Several former chief justices of the Florida Supreme Court have filed briefs supporting the personal solicitation ban, among them Harry Lee Anstead.
HARRY LEE ANSTEAD: The image created is a judge in their robes, holding their hand out to a lawyer or to a private company, and cash being passed from one hand to the other.
ANDREW PINCUS: This is not a contribution going from the hand of a lawyer to the hand of the judge.
TOTENBERG: Andrew Pincus is the lawyer for Williams-Yulee. While challenging the whole ban on personal solicitation, he's at the same time trying to parse it in this case.
PINCUS: This is mass solicitation via a post on an Internet site and via a letter.
TOTENBERG: The personal solicitation ban, he says, doesn't really protect the integrity of the judicial system in a state where contributions are publicly known.
PINCUS: It's a phony protection because the judge is going to know who gave and who didn't. So in a way, the prohibition creates an illusion of insulation when there isn't any real insulation.
TOTENBERG: Gregory Coleman, president of the Florida Bar, counters that you can't parse the rule so easily.
GREGORY COLEMAN: What they're saying is a judge or a judicial candidate should be able to, under the First Amendment, ask for money from a contributor. It does not look right. It doesn't smell right. It doesn't feel right.
TOTENBERG: Indeed, how would you draw the line, asks Barry Richard, who will represent the Florida Bar in the Supreme Court today.
BARRY RICHARD: When does it become a mass mailing?
TOTENBERG: And similarly, when would a group be big enough that you could make it in-person appeal? Former Chief Justice Anstead says that striking down any portion of the personal solicitation ban would be disastrous in Florida, which is just one generation removed from the worst judicial corruption scandal in the state's history.
In the 1970s, state Supreme Court justices were caught fixing cases on behalf of campaign donors, and even permitting a lobbyist to ghost-write the opinion of the Florida Supreme Court in a public utility's case. In the end, 4 of 7 justices were forced to resign and the state adopted a raft of reforms, including the ban on personal solicitation. Andrew Pincus, however, contends that making judicial candidates do their fundraising through committees stacks the deck for those with connections.
PINCUS: That favors the legal establishment. If you're someone who is not a well-connected lawyer, you may not have well-connected people to put on a committee to do the soliciting for you. You may have to send out letters yourself. And why should that be prohibited?
TOTENBERG: The Bar Association replies that there's nothing in the rule that prevents a candidate from raising money, just from doing it personally. Pincus counters that if the purpose is to prevent corruption, then why are candidates for legislative and executive office permitted to personally solicit campaign contributions? Because they are different, says the Bar's Barry Richard.
RICHARD: They're policymakers and people vote for them and contribute money to them because of the policies they stand for. In the case of the judicial candidate, you have an entirely different concern, which is a requirement for impartiality.
TOTENBERG: Finally, those challenging the personal solicitation ban argue that if a donation does cause the appearance of impropriety or the reality, judges can recuse themselves. In practice, however, most experts say that's a nonstarter, since recusal is largely left to individual judges and can produce unintended consequences. Florida Bar President Coleman.
COLEMAN: Trust me, in rural communitiesm they're all getting their contributions from the same pool, so you could theoretically run through three, four, five, six judges before you could find one that the lawyer did not contribute to. So it could create, literally, chaos within the system.
TOTENBERG: Just what role does money play in judicial elections and decisions? Polls show astonishing majorities of the public, as high as 70 or 80 percent or more, think money influences judges. And scholars have found that there is a relationship between campaign contributions and judicial voting.
TRACEY GEORGE: That is money biases, whether consciously or subconsciously, the recipient's subsequent actions.
TOTENBERG: Tracey George is a law and political science professor at Vanderbilt University. She's among scholars who filed a brief serving the data.
GEORGE: Donors have given to judges who face no opposition. So these donors clearly think there's an impact.
TOTENBERG: Of course, a ban on personal solicitation may not solve that problem.
ANSTEAD: It's true that it is not a perfect way of dealing with it.
TOTENBERG: Former Chief Justice Anstead.
ANSTEAD: We are limited to what we can do because of the great value we place in the First Amendment. But at least we're doing something.
TOTENBERG: The question now is whether the Supreme Court thinks that something is constitutional. Or whether judicial candidates will soon be just like all other candidates in the personal scramble for campaign cash. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
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