Supreme Court: States can bar judges from asking for campaign contributions

'Judges are not politicians,' Chief Justice John Roberts wrote in the 5-to-4 decision upholding Florida's judicial ethics rule.

The US Supreme Court on Wednesday upheld the constitutionality of a judicial ethics rule in Florida that bars candidates for judgeships from directly soliciting campaign support and contributions.

In a 5-to-4 decision, the high court said the ethics rule did not violate free speech protections enshrined in the First Amendment.

Instead, the majority justices ruled that Florida’s ethics canon was narrowly tailored to advance the state’s compelling interest in preserving public confidence in the integrity of the judiciary.

Writing for the court, Chief Justice John Roberts said the decision marked “one of the rare cases in which a speech restriction withstands [First Amendment scrutiny].”

“Judges are not politicians, even when they come to the bench by way of the ballot,” the chief justice said. “And a state’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.”

Chief Justice Roberts added: “A state may assure its people that judges will apply the law without fear or favor – and without having personally asked anyone for money.”

In a dissent, Justice Antonin Scalia said the Florida canon did not narrowly target concerns about a judge’s impartiality or appearance of partiality. “It applies even when the person asked for a financial contribution has no chance of ever appearing in the candidate’s court,” Justice Scalia wrote.

“Faithful application of our precedents would have made short work of this wildly disproportionate restriction upon speech,” he said.

Florida’s canon of judicial conduct is intended to protect the integrity of the state court system from the appearance that campaign contributions made by lawyers and lobbyists may be buying friendly court decisions.

Critics of the ethics rule charged that banning judges and prospective judges from personally soliciting campaign money and support violated their constitutional right to engage in core political speech.

The decision stems from the failed candidacy of Lanell Williams-Yulee for an open county judge post in Tampa.

At the start of her campaign, Ms. Williams-Yulee signed a letter requesting money and other support and then mass mailed the letter to voters in Hillsborough County.

The Florida Bar learned of her actions and charged her with violating the ethics rule. After the Florida Supreme Court rejected her appeal, she received a public reprimand and was ordered to pay $1,860 in legal costs.

Lawyers for Williams-Yulee filed a petition with the US Supreme Court, arguing that Florida’s ethics rule violated the free speech rights of judicial candidates.

In defending the ethics rule, the Florida Bar argued that the judicial code does not cut off all campaign activity open to a judicial candidate.

The measure allowed candidates for judgeships to form campaign committees that could raise funds and solicit support on behalf of an incumbent judge or a judicial candidate. But the law prohibited candidates from raising such funds and soliciting support personally.

Currently 39 states elect their judges; of those, 30 have enacted ethics codes similar to Florida’s.

In contrast to judicial elections at the state level, federal judges (and Supreme Court justices) are appointed to lifetime tenure by the president with the advice and consent of the Senate.

In the majority opinion, the chief justice says that Florida’s interest in preserving public confidence in the judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections.

“States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians,” Roberts said.

“Politicians are expected to be appropriately responsive to the preferences of their supporters,” he said. “The same is not true of judges.”

He noted that most donors to a judicial candidate are likely to be lawyers and litigants who may later appear in that judge’s courtroom. In addition, some lawyers and potential litigants may fear retaliation if they reject a personal request for campaign support from a prospective judge.

To protect against this danger, the Florida canon allows a candidate to solicit contributions through a campaign committee working on the candidate’s behalf.

“The identity of the solicitor matters, as anyone who has ever encountered a Girl Scout selling cookies outside a grocery store can attest,” Roberts said.

The chief justice said the ethics rule only limited one aspect of a judicial candidate’s free speech opportunities. “Candidates can write letters, give speeches, and put up billboards. They can contact potential supporters in person, on the phone, or online. They can promote their campaigns on radio, television, or other media,” Roberts said.

“They cannot say, ‘Please give me money.’ They can, however, direct their campaign committees to do so,” he said.

In his dissent, Scalia said Wednesday’s decision runs counter to a clear trend. “This court has not been shy to enforce the First Amendment in recent terms – even in cases that do not involve election speech,” he said, citing decisions upholding the sale of videos depicting animal torture, the sale of violent video games to children, and the ability to lie about winning war medals.

“Who would have thought that the same Court would today exert such heroic efforts to save so plain an abridgement of the freedom of speech,” he asked. 

Many groups seeking to limit the influence of money in elections praised the decision in the Florida case. 

“Our courts need public trust to protect our rights, but confidence in the courts is under siege from the explosion of big money in judicial elections,” Bert Brandenburg, executive director of Justice at Stake, said in a statement.

“Today’s decision helps judges, by saving them from the compromising job of raising cash from people whose cases they will decide. It helps our court system by shoring up its ability to be fair and impartial,” he said.

“And it helps the public, by reassuring them that they will not find themselves in court before a judge who has received a check directly from the opposing party in their case,” he said.

Megan McAllen of the Campaign Legal Center called the decision “a momentous victory for public faith in the integrity of our judicial system.”

Other analysts saw the decision as a step backward.

University of Pittsburgh School of Law Professor Arthur Hellman said the majority opinion applied a watered down standard in its First Amendment inquiry.

“This is a disturbing reversal of direction by a court that in recent years has stood firmly against content-based restrictions of speech, even those enacted with the best of intentions,” Professor Hellman said in a statement.

The case was Lanell Williams-Yulee v. The Florida Bar (13-1499).