The Supreme Court Looks at Judicial Campaign Fundraising
On October 2, 2014, the Supreme Court granted cert in Williams-Yulee v. The Florida Bar, examining the constitutionality under the First Amendment of a state ethical rule barring candidates for state judicial posts from personally soliciting campaign donations. Lanell Williams-Yulee was a candidate for county court judge in Hillsborough County in Florida. Canon 7 of the Florida Code of Judicial Conduct prohibits judicial candidates from personally soliciting contribution (Under Rule 4-8.2(b) lawyers who are candidate for judicial office must follow the applicable provisions of Florida’s Code of Judicial Conduct). The Florida Bar filed an official complaint with the State Supreme Court when Ms. Williams-Yulee personally signed a 2009 campaign donation solicitation for the 2010 judicial election. The Florida Supreme Court rejected Williams-Yulee’s First Amendment defense and publicly reprimanded and sanctioned her for violation of Rule 4-8.2(b). Ms. Williams-Yulee petitioned the Supreme Court to review whether the decision is appropriate, and at the start of the term this year, the Supreme Court granted cert in the case.
Illinois, like Florida, prohibits judicial candidates from personally soliciting or accepting campaign contributions, and we will be watching the case with interest.
Adam Liptak, writing about the case for the New York Times, notes:
[t]hirty of the states that elect judges ban such personal requests. Every state supreme court to address the bans has said they are justified by the need to protect the integrity of the judiciary and public confidence in the judicial system.
Writing at the Brennan Center, Liptak also notes that the briefs make no mention of the landmark decisions concerning money in political campaigns, Citizens United and McCutcheon. He asks whether the Justices are prepared to draw a line between judicial elections and political ones? Particularly now that Citizens United and McCutcheon have “codified a constitutional nexus between speech and money [. . . . and] altered the political funding dynamics of this nation in countless ways”.
Mark Joseph Stern writes about the case at Slate, focusing on the tensions created by systems which elect judges and how these are heightened under new rules about campaign financing in general. Stern quotes former Justice Sandra Day O’Connor writing a concurrence in Republican Party of Minnesota v. White, which held that a law forbidding judicial candidates from expressing an opinion on unsettled legal issues violated the First Amendment. O’Connor, in her concurrence, expressed concerns that “the very practice of electing judges undermines [the government’s interest in and actual or perceived as impartial judiciary].” Stern and O’Connor both acknowledge that even when judges don’t favor their donors or their donors’ interests when deciding cases, it is difficult for the public to trust that judges are not both aware of, and more sympathetic toward, the interests of their donors.
As we have often written, respect for judicial authority arises from public confidence in the skill and impartiality of sitting judges. We have urged the Illinois Supreme Court to adopt clearer recusal rules for judges when faced with litigants who contributed to their campaigns. We signed an amicus brief in Avery v. State Farm, discussing the issue of judicial ethics and recusal raised in the appeal. If the rule against judges personally soliciting campaign donations are invalidated, it will be necessary to press for action to clarify and strengthen recusal rules when judges face litigants who have been among their campaign contributors.