Tampa lawyer Lanell Williams-Yulee’s 2010 campaign for Hillsborough County judge was in many ways one she might like to forget. Not only did she lose in a landslide to a longtime incumbent, she was rebuked by the Florida Bar and fined a little more than $1,800.
Voters failed to find Williams-Yulee’s candidacy compelling, but the Supreme Court has taken a greater interest.
Later this month, the justices will consider whether the action that got the lawyer into trouble — violating Florida’s restriction against directly soliciting contributions to judge campaigns — is instead an unreasonable constraint on Williams-Yulee’s right to free speech.
Florida is among the vast majority of states that require the election of at least some judges. (Federal judges, by contrast, are nominated by the president and confirmed by the Senate to lifetime appointments.)
But 30 states prohibit judicial candidates from directly asking for campaign contributions, in most cases leaving that work to a committee the candidate establishes.
The Florida Supreme Court, in finding the restriction constitutional, said the prohibition was “one of a constellation of provisions designed to ensure that judges engaged in campaign activities are able to maintain their status as fair and impartial arbiters of the law.”
But others see it as a contradiction, or like being a little pregnant.
“By forcing judges to run for their seats, the state requires candidates to cull favor,” said a brief filed by the Thomas Jefferson Center for the Protection of Free Expression.
The brief said the Supreme Court should be skeptical of a state proclaiming it has a compelling interest in preventing the appearance of bias “if the state itself has undermined the public’s confidence in the impartiality of judges by choosing to select them through popular election.”
Williams-Yulee announced her candidacy in 2009 and sent out a mass mailing over her signature that said an “early contribution of $25, $50, $100, $250, or $500 . . . will help raise the initial funds needed to launch the campaign and get our message out to the public.”
The Florida Bar took exception, saying the letter violated Canon 7C(1) of the Florida Code of Judicial Conduct, which bans direct solicitations.
Williams-Yulee is represented by the legal clinic at Yale Law School and said in her brief to the court that Florida’s “across-the-board prohibition on candidate speech requesting campaign contributions” cannot withstand the strict scrutiny the court applies to government restrictions on First Amendment rights.
And the brief argues that, at best, the boundary the restriction erects between directly asking for campaign contributions and having a committee solicit them are paper-thin. Under the rules, a candidate can find out who contributed and even pen a note of gratitude.
In other words, Florida judicial candidates can say “thank you” but not “please.”
But supporters of the restrictions say there is value in insulating judges from the formal act of requesting contributions.
“We believe there is a qualitative difference between contributions made to a committee and a direct contribution to a judge,” former Florida Supreme Court chief justice Harry Lee Anstead said in an interview. He joined other former justices and Florida Bar presidents in a brief asking the court to uphold the prohibition.
He said the image of a judge accepting contributions in a “handshake” with a donor is “anathema to the whole function of the judicial branch.”
Anstead pointed out that Florida’s restrictions arose not from a hypothetical concern about ethics but a real scandal that rocked the state’s judiciary in the 1970s. Four justices of the state Supreme Court resigned following corruption scandals, including attempts to fix cases on behalf of campaign contributors.
The restrictions were enacted as part of a series of changes, including a system of merit retention for many of the state’s judges and justices.
Anstead said the potential problems would be magnified because of recent Supreme Court decisions easing restrictions on campaign contributions and a new focus by the political parties and special-interest groups on control of state supreme courts.
A brief filed by the group Justice at Stake, which opposes electing judges, and the Brennan Center for Justice said direct campaign fundraising for state supreme-court races went from $83 million for the period from 1990 to 1999 to $207 million for 2000 to 2009.
The U.S. Supreme Court in 2002 ruled that states that elect judges cannot at the same time forbid candidates from taking positions on political and legal issues. Former justice Sandra Day O’Connor, who has spoken out forcefully against judicial elections since she left the court in 2006, has said subsequent events have caused her to regret her role in the majority in that case.
But her words in a concurrence are cited by Williams-Yulee and her supporters. “Unless the pool of judicial candidates is limited to those wealthy enough to independently fund their campaigns,” O’Connor wrote, “. . . the cost of campaigning requires judicial candidates to engage in fundraising.”
But the Supreme Court in a 2009 case, Caperton v. A.T. Massey Coal, said a West Virginia Supreme Court justice should have recused himself from a dispute because one of the parties had spent millions of dollars on the justice’s campaign.
While the state supreme courts that have ruled on the restrictions have found them constitutional, the federal courts are sharply divided.
Anstead said the prohibition was a “very minor restriction” that nevertheless has an impact on the public’s trust in an independent judiciary.
But others wonder whether it is so small that the Supreme Court will not see it as worth compromising free-speech rights.
Bob Bauer, an election-law expert and formerly President Obama’s White House counsel, questioned in a blog post “the improbable suggestion” that a prohibition could be so narrowly drawn to keep from offending the Constitution and at the same time “yield major benefits.”