Update (January 23, 2015): Oral arguments were held in Williams-Yulee earlier this week. That case will decide whether it is constitutional to bar judicial candidates from personally soliciting attorneys for campaign contributions. And the justices seem to be dividing along the usual lines. With Justice Kennedy, who will likely be the swing vote, largely silent during the argument.
The conservative justices pointed to ways the Florida speech solicitation policy has holes and is under-inclusive. So, for example, the justices were concerned about the role campaign committees may play. And, under the Florida rule, judicial candidates may send “thank you” notes to contributors.
The attorney for the Florida Bar argued that there were two interests at stake: the first amendment interest, of course, and also the interest in a fair and impartial judiciary. Some of the liberal justices noted that attorneys may feel obligated to respond to judicial candidate requests for funds, and that the solicitations undermine the appearance of impartiality, if not the reality.
Justice Kennedy authored Citizens United, and is a strong first amendment advocate. As mentioned, he was largely silent during the argument. There were a couple exchanges that were telling, though, and may suggest how things will turn out. The attorney for the penalized judicial candidate had said the Court could rule for his client and let states bar “one-to-one solicitation” by judicial candidates. Justice Kennedy was concerned about trying to define a limit, and said, “If we say, ‘Well, the one-on-one letter, that’s almost like a personal solicitation, we can ban that,’ then what about a letter to five people? And then we’re off to the races.” At another point, the attorney for the disciplined judicial candidate said, “[T]here are some states that prohibit the judge from finding out who [has made contributions], Minnesota, for example, has that prohibition.” And in response, Justice Kennedy said, “Well that — it seems that — that’s just unworkable.” Justice Kennedy’s comments do not bode well for the Minnesota middle course, which allows judicial candidates to sign mass mailings and to personally solicit funds from groups of 20 or more.
A decision will be released before July 1, 2015.
Original post (January 14, 2015): Next week, the U.S. Supreme Court will consider whether another regulation governing judicial elections is constitutional or whether it violates the first amendment.
On Tuesday, January 20, the Court will consider Williams-Yulee v. The Florida Bar. (For a free webinar on January 15 with background on the case, click here.)
In that case, the Florida Supreme Court upheld a canon barring judicial candidates from personal solicitation of campaign contributions (instead requiring judicial candidates to raise funds through committees). The appellant in that case – Lanell Williams-Yulee – running for a county court seat, sent personal letters to potential donors asking for campaign contributions. She was reprimanded and fined $1800 for violating the anti-solicitation ban in the state’s Code of Judicial Conduct. The Florida Supreme Court upheld the constitutionality of the ban, ruling that it helped “ensure that judges engaged in campaign activities are able to maintain their status as fair and impartial arbiters of the law.” The case is now at the Supreme Court’s doorstep.
The Florida case is the continuation of a drama that began in Minnesota.