The Roberts Court has taught us much that we didn’t learn in fifth grade civics. Mrs. Walsh never told me that corporations are people and money is speech, and she certainly didn’t teach me that every citizen had a right to a fully-loaded Glock. But while the Roberts Court has rewritten the textbook on these issues, I thought it would at least leave the division between politicians and judges untouched. I assumed that campaign speeches and fundraising would remain the province of senators and representatives, and that state judges would be able to maintain at least the veneer of impartiality and incorruptibility. However, the court’s conservative majority seems poised to obliterate even this long-held distinction.

The Rehnquist court began that work in 2002 when it held in that under the First Amendment, judicial candidates have a right to make judgment-biasing campaign promises. Now the Roberts Court seems likely to finish the job by using Williams-Yulee v. Florida Bar to declare that judges have the right to personally solicit campaign contributions. In doing so, the Court will continue to degrade judicial independence, and further the transformation of courtrooms into political arenas.

Williams-Yulee v. Florida Bar is not a sexy case. The facts are relatively mundane: In 2009, a woman named Lanell Williams-Yulee ran for a county court judgeship in Florida, and personally signed a mass-fundraising letter. The Florida Bar filed a complaint alleging Williams-Yulee had violated a Florida statute banning personal solicitations by judges, and Williams-Yulee was reprimanded and forced to pay a $1,860 fine. Williams-Yulee then challenged the Florida statute as an unconstitutional abridgment of her First Amendment right to free speech, and six years later, the case has found its way to the Supreme Court.

In spite of its less-than-riveting background, Williams-Yulee v. Florida Bar is potentially one of the most important cases the Supreme Court will decide this term. In addition to Florida, 29 states have bans on personal campaign fund solicitation by judges, meaning the nature of judicial campaigns could be fundamentally reshaped by a decision to vacate such bans. Further, this sort of change could significantly jeopordise the presumed impartiality of state judges. Why, then, do some people assert that personal solicitation bans violate the First Amendment, and do they have a compelling claim?

Strict Scrutiny, “Closely Drawn” Scrutiny and the First Amendment

Since at least NAACP v. Patterson, the Supreme Court has generally held that laws restricting speech on the grounds of its content are subject to strict scrutiny. This is consistent with the Supreme Court’s usual practice of subjecting abridgements of “fundamental rights” to strict scrutiny. As a refresher, a law receiving “strict scrutiny” is presumed to be unconstitutional, and can only be upheld if it meets the following three conditions:

  • It must be justified by a compelling state interest. This means the law is needed to protect something essential to the health of the state. National security is generally considered a compelling state interest.
  • It must be narrowly tailored. When a right like that of free speech is under consideration, the “narrowly tailored” requirement means that the law must be carefully written so that it only infringes on that right when absolutely necessary to meet the compelling state interest.
  • It must be the least restrictive means of meeting that state interest.When a restriction of a right is under consideration, this condition requires that there cannot exist a viable alternative method for achieving the state interest that does not require violating the right.

It is relatively rare for laws receiving strict scrutiny to survive Supreme Court review. However, it is not unheard of, especially when the justifying state interest is one the Court has already recognized as compelling.

A reader at this point could be forgiven for wondering what all this talk about “abridging speech” has to do with fundraising. After all, fundraising might initially seem to be more of an activity than a type of speech. However, ever since Buckley v. Valeothe Supreme Court has held that, in the context of political campaigns, political donations are considered a type of speech. Thus, it often considers limits put on fundraising and campaign spending to be unconstitutional restrictions on speech. I am personally not convinced that this argument is constitutionally sound; I think Byron White may have been onto something in writing in his Buckley dissent that the equivalence of money with speech “proves entirely too much.” Nevertheless, Buckley and more recently Citizens United are the established precedents, and any argument that hopes to succeed in justifying a campaign finance restriction must acknowledge these rulings.

There is a slight distinction between the Court’s treatment of campaign spending and campaign fundraising. Even since Buckley, campaign spending has been considered true political speech, and its restriction subject to strict scrutiny. Campaign fundraising, however, is considered a somewhat less pure form of speech, and as such, restrictions on fundraising efforts and campaign donations must meet a less rigorous test: “closely-drawn” scrutiny. Closely-draw scrutiny holds, as the per curiam majority wrote in Buckleythat limitations on fundraising efforts and contributions “may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgement of associational freedoms.” Thus, fundraising restrictions have a better chance of surviving that expenditure restrictions, as they only have to be justified by a “sufficiently important” government interest.

Since today’s Court accepts that campaign contributions and expenditures are equivalent to speech, campaign finance restrictions are now subject to either strict scrutiny or closely-drawn scrutiny. In response, campaign finance reformers have sought to establish several “compelling” or “sufficiently important” reasons for a state to limit campaign fundraising and expenditures. Among these are:

  1. Preventing corruption or the appearance of corruption;
  2. Equalizing the influence of individual citizens on elections, and;
  3. Preventing money from unduly influencing electoral politics;

Unfortunately, today’s Court only recognizes (a) as a compelling or sufficiently important state interest. This essentially means that any restrictions on campaign finance must be orientated toward “preventing corruption or the appearance of corruption.” Any other justification will likely fail to keep the law in force.

The Oral Arguments and Likely Outcome

On January 20th, the Court heard oral arguments in Williams-Yulee. As expected, the arguments centered around the issue of corruption. Barry Richard, representing the Florida Bar, argued that Florida’s personal solicitation ban is necessary to prevent judicial corruption. He claimed that preventing judges for asking for money directly created distance between the judge and the donor, decreasing the feeling of personal debt the judge will have towards the donor. Richard’s arguments carry additional weight because of Florida’s past — the Sunshine State’s history is littered with examples of judicial corruption. For instance, in the 1970’s, three Florida Supreme Court justices were forced to resign following attempts by those justices to influence lower-court on behalf of their campaign donors. Florida’s personal solicitation ban was in part a response to this egregious incident. Thus, as Richard notes, it seems obvious that the solicitation ban fits with the goal of preventing judicial corruption or the appearance thereof.

On the other side, Andrew Pincus tried to convince the judges that the personal solicitation ban was ineffective as a means of preventing judicial corruption. He pointed out that while judicial candidates are not allowed to personally ask for money, they can send personal thank-you notes in response to donations, and can direct their campaign committees to communicate their monetary requests to donors. This, Pincus said, means that banning personal solicitations does not actually prevent judicial corruption, and that the law is therefore an unconstitutional restriction on speech.

According to reports from outlets like SCOTUSblog and the New York Times, the Justices’ behavior during oral arguments suggest that they will strike down Florida’s personal solicitation ban. Justice Kennedy, having never met a campaign finance law he liked, seems a probable vote to strike. Likewise, Justice Thomas will almost certainly vote against the ban, considering his famous suggestion in Citizens United v. FEC that all campaign finance restrictions violate the First Amendment. Meanwhile, Justice Alito, who has recently been giving Thomas a run for his money as the Court’s most conservative justice, will probably also hold the ban unconstitutional.

That leaves Justice Scalia and Chief Justice Roberts as the two other potential votes to kill the ban. Justice Scalia made some surprisingly conciliatory comments during oral arguments, saying society’s interest in judicial dignity entails that “there’s stuff we don’t let judges do.” However, it didn’t seem that Scalia was including personal solicitations under “stuff,” for he later suggested that banning personal solicitations does not have a substantial effect on corruption. Thus, he is probably also a vote to strike. That leaves Chief Justice Roberts as the deciding vote (assuming the Court’s four liberals support the ban). Roberts, like Kennedy, has never been particularly charitable to campaign finance restrictions, and he doesn’t appear likely to break form in this case. As the New York Times’ Adam Liptak noted, during oral arguments, “Chief Justice John G. Roberts Jr. said the prohibition was too broad in banning even requests to, say, college classmates.” Such a categorical statement suggests that Roberts has made up his mind to strike down the law, and, given the disposition of the other Justices, will probably prove the decisive fifth vote to do so.

Though I ultimately believe the Florida statute is doomed, I think the Justices will be making a constitutional mistake in doing so. The personal solicitation ban, while not perfect, is an eminently reasonable means of pursuing several “sufficiently important” state interests, and should survive closely-drawn scrutiny. Moreover, because of the distinctive character of judicial elections and their tight connection with constitutionally guaranteed rights, it appears to me that a more lenient standard of review might be a more appropriate test of Florida’s law. Under such a standard, the statute would surely pass constitutional muster.

Why the Florida Ban Should Be Upheld

In his oral argument, Andrew Pincus suggested that Florida’s personal solicitation ban should receive strict scrutiny. This seems incorrect. As the legendary Supreme Court reporter Lyle Denniston noted for SCOTUSblog, the Supreme Court has never applied strict scrutiny to this type of fundraising limitation, and there is no reason for it to break precedent at this juncture. Closely-drawn scrutiny would is probably the most demanding standard the Justices could employ against the Florida law.

It is undeniable that Florida’s statute is aimed toward a “sufficiently important” government interest. Given Florida’s past history of judicial corruption, it’s hard to interpret the personal solicitation ban as anything other than an attempt to combat “corruption and the appearance of corruption.” As this interest has already been deemed compelling by the Supreme Court, we need to search no further for a state interest capable of justifying the law. However, since Shelby County v. Holderthe Roberts Court has shown a willingness to strike down laws it deems ineffective, even if their end is within the states’ power to pursue. Thus, Florida does need to show that the statue is at least a somewhat efficient means of pursuing the interest. I believe that Florida has met that burden. In particular, an amicus brief coming from three former chief justices of the Florida Supreme Court characterized the law a practically useful tool for preventing judicial corruption. This testament carries the weight of high-level judicial experience, and is a powerful statement in favor of the statute.

More difficult is demonstrating that the Florida statute is “closely-drawn” such that it avoids unnecessarily abridging freedoms. The closely-drawn test requires that the law be relatively narrow in scope, only pursuing ends that the Court has deemed “sufficiently important.” Moreover, the law must only infringe on constitutionally protected rights when doing so is a precondition to furthering the approved interest. A closely-drawn law doesn’t need to fulfill these requirements perfectly, but must at least do so reasonably well. The Florida law, I think, meets both conditions adequately. The law is quite narrow; it doesn’t prevent the judge’s campaign committee (which the judge can be involved with) from reaching out to any potential donor, and it doesn’t restrict the amount that committee can solicit. Thus, the law is not a limit on how much the judge can spend to promote herself and consequently, not a heavy restriction on speech. In fact, the law only has one effect, which, according to Florida’s lawyer Barry Richard, is to sever the direct link between a judge and the donor. Given that this is the only meaningful consequence of the personal solicitation ban, it certainly seems as though the law pursues only a Court-approved goal.

Though Florida’s personal solicitation ban should survive closely-drawn scrutiny, it seems inappropriate to even subject it such a rigorous standard. Restrictions on fundraising for judicial candidates are not the same as restrictions on fundraising for legislative or executive candidates, and should not be treated as such. Judges are the guardians of due process rights in the United States, and their ability to protect such rights is dependent on a degree of independence from the constraints of ordinary politics. While dispensing with judicial elections would best ensure this independence, bans on personal solicitations at least partially shield judges from the corrupting influence of unscrupulous donors. True, the specific due process rights aren’t directly tied to such a ban, or judicial independence per se. But the expansive notion of due process as general fairness is directly bound to an unbiased judiciary, and it’s this broad conception of due process that we most value as citizens. Thus, an explication of the judiciary’s First Amendment rights needs to be balanced by a concern for the due process rights of ordinary citizens, and in my mind, this cannot be achieved by subjecting reasonable fundraising restrictions to a standard as rigorous as closely-drawn scrutiny.

Final Thoughts

Should the Justices choose to invalidate the Florida statute, similar bans in 30 other states will fall with it. More worrisome that the fate of these laws, though, would be the signal the decision would send about the Supreme Court Justices’ overall attitude towards judicial elections. To the extent that judicial elections are at all an acceptable means of choosing judges, they should be subject to heavy regulation, including meaningful fundraising restrictions. To allow otherwise opens the door for blatant corruption, and fails to provide citizens with the independent judiciary they deserve. If the Supreme Court Justices gut our means of controlling judicial elections, we need to have a national conversation about the continued appropriateness of those elections.

Brett Parker, a sophomore studying political science, is a staff writer at Stanford Political Journal.