SCOTUS Ruling on Judicial Campaign Ethics Rules
Chicago Appleseed and the Chicago Council of Lawyers were invited to join an amicus brief filed in Williams-Yulee v. the Florida Bar, examining whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment. The brief was submitted on behalf of state and local judicial election reform groups and drafted by Cleary Gottlieb Steen & Hamilton LLP (New York, NY) and Schnader Harrison Segal & Lewis LLP (Philadelphia, PA) in support of the rule as an important means of preserving judicial integrity and confidence in the neutrality of our courts.
Thirty-nine states elect judges and thirty of those states ban judicial candidates from making personal appeals to campaign donors, Illinois among them. These rules have consistently been upheld by state supreme courts as necessary to preserve public confidence that elected jurists maintain integrity and impartiality. We also believe this is a meaningful standard that maintains confidence in the impartiality of sitting judges.
The Supreme Court’s 5-4 decision notes that judges are different from politicians, stating at the outset:
Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. (p. 3)
Because First Amendment protection is strongest for speech about public issues and the qualifications of candidates for elected office, restrictions upon it must be narrowly tailored in order to meet a compelling state interest (p. 7-8 of the decision). Nonetheless, states may regulate judicial elections differently than they regulate political elections precisely because judges are fundamentally unlike politicians and other elected officials. While politicians are expected to enact the will of their supporters, judges must not. They are to apply the law to the facts, neutrally. (p. 15) It is this need for impartiality—and for confidence in the appearance of impartiality—that allows states, like Florida and Illinois, to impose a rule against personal campaign solicitation by judicial candidates, which is a narrow restriction on the candidate’s ability to participate in her campaign.
The decision also questions Willams-Yulee’s argument that recusal rules and campaign contribution limits are sufficient on their own to maintain the State’s interest in an unbiased judiciary. (p. 23-24) Finally, the court briefly touches on the question of whether judicial elections are in themselves desirable, acknowledging arguments on both sides, noting that is outside the Court’s “limited task” in this case, concluding “A State’s decision to elect judges does not compel it to compromise public confidence in their integrity.”