The Supreme Court’s decision to uphold ethics rules prohibiting judicial candidates from directly soliciting campaign contributions is easy to minimize. But the ruling in Williams-Yulee v. Florida Bar [April 29], surprisingly written by Chief Justice John G. Roberts Jr., should not be dismissed as inconsequential because the alternative would have made judicial elections much worse than they already are.
Imagine judges and would-be judges in 39 judicial election states dialing for dollars unencumbered by ethical prohibitions and encouraged to view the practice as a constitutional right. The Supreme Court’s actual decision instead upheld Florida’s rule, akin to those on the books in 29 other states, that bars judges or judicial candidates from personally asking for money to run their campaigns.
Two other states, Georgia and Kentucky, had adopted such bans but they had been struck down by federal appeals courts, in 2002 and 2010 respectively. The Kentucky Supreme Court reinstated its ban one week after the ruling [May 6], but the head of Georgia’s Judicial Qualifications Commission said there were no immediate plans to revive its former rule. The Supreme Court’s ruling dispels doubts about the rule and might stimulate interest in other judicial election states to consider adopting it.
The actual impact of the bans is easy to play down. The rules uniformly ban direct solicitations but allow a judge or judicial candidate to create a campaign committee to solicit and manage campaign funds and to solicit expressions of support from lawyers.
Florida’s interpretation of the rule, the justices were told, also allows a judicial candidate to provide a list of prospective donors to the campaign committee and to write thank-you notes to donors afterward. “There’s a problem that judges can say thank you but not please,” says Jed Shugerman, an associate professor at Fordham University School of Law in New York City and author of The People’s Courts: Pursuing Judicial Independence in America.
More broadly, the case did not address at all the issue of the rising cost of judicial campaigns and the spending by special-interest groups, especially business interests and anti-crime organizations. In a friend-of-the-court brief, the Brennan Center for Justice at New York University Law School reported that spending solely on state supreme court races had more than doubled from $83 million in 1990-99 to $230 million in the succeeding decade: 2000-2009.
“The case was never about spending,” said Ernest Myers, the Orlando lawyer who represented the reprimanded, unsuccessful judicial candidate Lanell Williams-Yulee in the case. “Judicial candidates are free to raise as much money as they can possibly raise.”
Indeed, Roberts said nothing about the overall cost of judicial campaigns in his opinion, which was joined in full by liberal justices Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan and in part by Ruth Bader Ginsburg. But Ginsburg wrote a partial concurrence, joined by Breyer, with an ominous warning. “Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence,” she wrote.
The bans on judicial candidates’ fundraising stem from a provision that the American Bar Association included in its Model Code of Judicial Conduct in 1971. The bans represent the third twentieth-century imitative to try to depoliticize judicial races somewhat. Early in the century, the progressives pushed nonpartisan elections for judicial races, the practice in Florida and just under half of the other election states. In the 1930s, bar and judicial reform groups pushed the so-called Missouri plan, which combines merit selection followed by yes-no retention elections.
The Missouri plan, widely adopted for appellate and supreme court justices, has not succeeded in protecting them from political attack. Law-and-order campaigns ousted three California Supreme Court justices in 1986 and one Tennessee justice in 1996; three Iowa justices who voted to recognize same-sex marriage in 2009 were defeated the next year.
Shugerman acknowledges the problems with money in judicial elections. “You can argue that judicial elections are so corrupting that any of these measures just puts a façade on them,” he says. Still, he applauds the Supreme Court’s ruling. “It recognizes that judges are different from other public officials and that the appearance of impartiality is a compelling public interest,” he says.
In oral argument, Roberts had appeared to be a likely vote to strike down the rule after questioning the rule as both overly broad and somewhat ineffective. In his opinion, however, Roberts appears to have been swayed by arguments like those raised by Breyer and Sotomayor that lawyers solicited for funds from a judicial candidate have a very hard time saying no.
“The identity of the solicitor matters as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest,” Roberts wrote. “When the judicial candidate himself asks for money the stakes are higher for all involved.”
Gregory Coleman, a West Palm Beach lawyer about to complete his one-year term as Florida Bar president, dismissed the criticism that judicial candidates eventually learn the names of donors anyway. “The flip side is that the judge doesn’t know who doesn’t contribute,” he explains.
Coleman says that direct fundraising by judges or would-be judges “is distasteful, unacceptable, and intolerable.” Most states had come to that conclusion even while retaining judicial elections. The Supreme Court could have made the system more distasteful. Be grateful for the 5-4 favor that it did not.