The First Amendment and campaign solicitations: In Plain English
on Jan 20, 2015 at 7:46 am
In 2009, Lanell Williams-Yulee sent out a letter announcing that she was running for county court judge in Hillsborough County, Florida. The letter from the Tampa lawyer, which was also posted on her campaign website, asked for contributions of as much as five hundred dollars to fund her campaign.
As fundraising appeals go, the mass mailing was a flop: it did not result in any campaign contributions. But it did draw the attention of the Florida Bar, the organization responsible for (among other things) disciplining lawyers in the state. The bar filed a complaint charging that Williams-Yulee had violated a rule that prohibits candidates for judgeships from personally soliciting campaign funds – including through mass mailings like the one that Williams-Yulee had sent to would-be donors.
The Florida Supreme Court, the ultimate arbiter of attorney discipline in that state, rejected Williams-Yulee’s argument that the Florida rule prohibiting her from soliciting campaign contributions violated the First Amendment. Instead, it publicly reprimanded her for violating the rule and ordered her to pay for the costs of the disciplinary proceeding – approximately $1800.Williams-Yulee may find a more receptive audience for her First Amendment argument at the U.S. Supreme Court, which will hear her case today. She contends that the rule cannot pass the very difficult legal test – known as “strict scrutiny” – that courts apply to laws or policies that prohibit speech based on its content. She acknowledges that one of the purposes of the rule – preventing favoritism and corruption – could provide the kind of “compelling government interest” that might allow the rule to pass constitutional muster. However, she challenges the Florida Bar’s contention that the rule is also necessary because the government has a strong interest in preventing the appearance of bias and corruption, suggesting that such a standard is too vague.
But in any event, she adds, the Supreme Court doesn’t need to decide whether preventing the appearance of corruption and bias is a compelling interest because the rule can’t pass the second part of the “strict scrutiny” test. That prong of the test looks at whether a restriction on speech is “narrowly tailored,” which means that it carefully targets only the speech that needs to be restricted to accomplish its purpose – no more, no less. In some ways, Williams-Yulee argues, the rule doesn’t target enough speech. For example, it still allows a prospective judge to know who has contributed to her campaign, and therefore still creates the opportunity for bias, and it allows candidates to ask individuals to support their campaigns in other ways, such as by donating volunteer services instead of money. At the same time, she continues, the rule prohibits too much speech: it even applies to impersonal communications like mass mailings, website postings, and speeches to large groups, none of which are likely to create the impression that a recipient, reader, or listener must choose between making a campaign contribution or receiving less favorable treatment in future court proceedings. And, she concludes, the government has other options – such as requiring a judge to recuse herself from proceedings involving a contributor or limiting campaign contributions – that can combat judicial bias and corruption without restricting speech.
For its part, the Florida Bar paints a very different picture of the rule as an unremarkable and narrow restriction necessary to prevent both corruption and the appearance of corruption. The bar emphasizes not only that “there is abundant evidence that the public perceives campaign contributions to judicial candidates as having an undue influence on judges’ decisions,” but also that many state judges themselves have indicated that campaign contributions may affect their rulings. And in particular, the bar suggests, the possibility for corruption or the appearance thereof arises from the “direct link between the contributor and the candidate” for a judgeship; it is that link, the bar maintains, that the rule prohibiting personal solicitation of campaign contributions targets. And therefore, the bar continues, it doesn’t matter that a candidate for a judgeship can eventually learn who has contributed to her campaign. It also doesn’t matter, the bar contends, that a would-be judge can personally ask someone to contribute his time to the campaign: giving money, the bar suggests, speaks louder than “holding signs and licking envelopes.” All that the rule does, the bar concludes, is prevent a candidate for a judgeship from personally soliciting contributions. It does not otherwise restrict what she can say, and she can still raise campaign funds through a committee.
Those who believe that judges should not be elected at all (a group that includes retired Justice Sandra Day O’Connor) will be watching this case closely. In their view, it’s bad enough that judges have to raise money for their campaigns, but allowing judges and candidates for judgeships to personally solicit campaign contributions will increase the possibility of favoritism in decision making.
The case could be even more significant, though, as the latest chapter in the Roberts Court’s campaign-finance jurisprudence. Last year, in a case called McCutcheon v. Federal Election Commission, the Court ruled that Congress cannot put overall caps – known as “aggregate limits” – on the amount that someone can contribute to candidates for federal offices, political parties, and political action committees. Although a ruling for Williams-Yulee might be an incremental step toward the further deregulation of the campaign-finance system, it would be a step nonetheless. We’ll know more about where the Court might be headed in this case after today’s arguments.