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The Chicago Daily Law Bulletin examined the issue of money in judicial elections in their annual Law Day issue last Sunday, April 26^th. Staff Attorney Elizabeth Monkus was among the people interviewed for the article, which was framed around the Williams-Yulee case, which was still pending in the Supreme Court at the time of the article. The case was decided last week, with the Court affirming that restrictions on a judicial candidate’s personal solicitation of campaign contributions does not violate her First Amendment rights to free speech.

11 states submitted amicus briefs in the case, although Illinois did not. Chicago Appleseed and Chicago Council of Lawyers were the only groups in Illinois identified in the article as joining or submitting an amicus in the case. We did so because we believe that the issue will become more complicated as the influence of super-PACs grows and as our justice system faces increased scrutiny from the public at all levels.  In her concurrence, Justice Ginsburg spoke to the increased involvement of PACs in judicial elections as a threat to “both the appearance and actuality of judicial independence.” (Ginsburg concurrence, p. 4)

The Ruling in Williams-Yulee relies on the premise that judges are unique among elected officials (Roberts, CJ, p. 10-11). Steven Pflaum, partner at Neal Gerber & Eisenberg and formerly a member of the Illinois Judicial Ethics Committee, and Appellate Justice Michael B. Hyman—both quoted in the Law Bulletin—agree that judges are fundamentally different from politicians. Each also expressed the notion that concerns about judicial integrity which arise from the solicitation of campaign contributions are grounded in the overall impact on the court’s independence and public confidence in its integrity. Pflaum also explained that direct solicitations from attorneys by judge are inherently coercive, regardless of any intent to exert pressure because attorneys are conditioned to accommodate judicial requests. This sentiment again arose in the Williams-Yulee ruling, where the Court discusses the difference between a request from a judge’s campaign committee and a personal request from a judge: “the identity of the solicitor matters.” (Roberts, CJ, p. 14)

Both Justice Hyman and Chicago Appleseed expressed concerns that it is even possible to insulate judicial candidates from knowing who their donors are and that, therefore, state must set up rules to guide how candidates interact with their donors. Again, the Supreme Court notes that rules such as Florida’s are quite narrow and leave a range of campaign behaviors (such as writing personal thank you notes) unregulated. Harking back to its expression that identity matters in asking for a campaign donation, the Court writes that the impact of a judicial candidate requesting a donation is not comparable to the impact of knowing that a judge may learn who the donors to her campaign were. (Roberts, CJ, p 15-16) While the former is coercive in a manner that impacts public perception of a pay-to-play atmosphere, the latter does not.

Neither the Law Bulletin article, nor the majority opinion in Williams-Yulee, go into much detail about how recusal rules can work with robust campaign regulation to promote confidence in the fairness of the judiciary. Recusal rules are a complex system—writing for the majority Chief Justice Roberts states that mandatory recusal in every instance of a campaign contribution could allow attorneys to game the system. Nonetheless, robust recusal procedures and clear recusal rules  absolutely have a role in preserving the integrity of an elected judiciary. Chicago Appleseed has been working with many partners, including the Illinois Campaign for Political Reform, to promote adoption of comprehensive recusal procedures in Illinois and to include campaign donations in the recusal rules.

It’s clear that these questions are gaining traction with the general public. It’s important to preserve the integrity and the reputation of the judiciary in order to maintain capable, efficient and just courts. We appreciate the opportunity to speak out on these issues and enjoy seeing such thoughtful commentary from various sources. If you’d like more analysis of the Williams-Yulee ruling, SCOTUSblog hosted a blog symposium on the topic this week [Part 1, 2, 3, 4, 5, 6, 7, 8, 9, 10]

Finally, we’d like to make a minor correction to the article, which states that we were signatories on the amicus brief submitted by the Brennan Center for Justice. Chicago Appleseed and Chicago Council of Lawyers joined an amicus submitted on behalf of State and Local Judicial Reform Groups. Although we were connected to those other groups through the Brennan Center at the New York University School of Law, we did not join the Brennan Center’s brief and the brief we joined was written by Cleary Gottlieb Steen & Hamilton LLP (New York, NY) and Schnader Harrison Segal & Lewis LLP (Philadelphia, PA).