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In Plain English: Justices finally find speech they do not like – and it’s by (would-be) judges

In the past few years, the Roberts Court has been very supportive of the freedom of speech, ruling in favor of protests by the Westboro Baptist Church at a soldier’s funeral, violent video games for children, videos depicting dog-fighting, and lies about receiving prestigious military medals.  But today an unusual coalition of five Justices — Chief Justice John Roberts and the Court’s four more liberal Justices – agreed on one kind of speech that the government can ban:  personal solicitations of campaign funds by people running for judgeships.  Let’s talk about the ruling in Williams-Yulee v. The Florida Bar in Plain English.

As I explained in my earlier coverage of the case, in 2009 Lanell Williams-Yulee was running for a seat on a county court in Florida.  In an effort to raise money, she sent out a mass mailing with a personal appeal for campaign contributions; she posted the same letter on her campaign website.  That got her into trouble with the Florida Bar, the group that regulates lawyers and judges in Florida, because the code of conduct for Florida judges prohibits candidates for judgeships from personally soliciting campaign funds.  Williams-Yulee fired back, arguing that her right to ask for campaign contributions is protected by the First Amendment.  That defense fell short in the disciplinary proceedings that followed, in the Florida Supreme Court, and today at the U.S. Supreme Court.

In his opinion for the Court, Chief Justice John Roberts explained that the Florida Bar faced an uphill challenge in defending its ban:  it would have to show the ban targets, as closely as possible, an important government interest.  Although the Court added that “it is the rare case” in which the state can make such a showing, the Chief Justice and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan concluded that the Florida Bar had managed to do so.  It is a longstanding principle, the Court explained, that members of the public will not have confidence in a judge’s integrity if they believe that the judge has relied on favors to get her job in the first place.  That public confidence in the integrity of judges is essential, the Court continued, because the authority of the judiciary “depends in large measure on the public’s willingness to respect and follow its decisions”; unlike the legislative or executive branch, the judiciary doesn’t really have any other way to enforce its decisions.

The Court’s analysis was not changed by the fact that the Florida ban still allowed candidates for judgeships to seek campaign contributions in other ways that might also affect public confidence in the judiciary – for example, by allowing a judge’s campaign committee to solicit contributions, and by allowing the candidate herself to write thank-you notes to donors.  A ban isn’t too under-inclusive, and therefore unconstitutional, just because the government hasn’t dealt with all of the potential problems at once, the Court clarified; the government can focus on the biggest concern first, which is exactly what the ban on personal solicitation does.  And in any event, having your campaign committee ask for money is different from asking for money yourself, the Court reasoned:  it matters who is doing the asking, “as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest.” The Court also rejected the idea that the ban might silence too much speech.  Candidates for judicial office have plenty of options to get their messages across and raise money; they just can’t reach out to personally ask someone for money.

The main dissent in the case came from Justice Antonin Scalia, who would have struck down the ban as unconstitutional.  Among other things, he contends that the Florida Bar has failed to demonstrate a connection between banning personal solicitations and improving public confidence in the judiciary.  Indeed, he notes, many states still allow candidates for judgeships to ask for campaign contributions, but no one has suggested that the people in those states have less confidence in their judges’ integrity as a result.  The ban cannot be constitutional, in his view, because it blocks too much speech:  it even bars candidates like Williams-Yulee from asking people like her parents, who could never appear in her courtroom, for money, and it prohibits them from doing so through tactics like mass mailings and internet sites that would not create any risk that the recipient would somehow feel coerced into contributing.  Moreover, he adds, the ban only applies to campaign funds; it doesn’t prohibit someone like Williams-Yulee from asking a lawyer to use his firm’s tickets to a football game.

What the case really boils down to, Scalia charged, is the five Justices putting their desire to protect the integrity of courts above the requirements of the Constitution itself.  Protecting the courts’ integrity is certainly an important goal, he says, but “so too are preventing animal torture, protecting the innocence of children, and honoring valiant soldiers.”  The Court didn’t lower the Constitution’s standards when legislatures wanted to advance those objectives, and it shouldn’t do so here.

So what does this mean for the big picture?  Voters elect judges in thirty-nine states, thirty of which have rules similar to Florida’s ban.  Advocates of campaign-finance reform have hailed today’s decision as a victory, which of course it is in a sense:  the decision means that not only Florida’s ban but also all of the others will stay in effect.  Whether that result has a broader significance may well be in the eye of the beholder – that is, whether you believe that public confidence in the judiciary is undermined when candidates for judgeships can personally ask for campaign contributions, even if their campaign treasurers can do the exact same thing on their behalf.  And that, as today’s opinion shows, is a question on which even very smart people are divided.

Another looming question is whether today’s decision in any way signals a retreat from the Court’s recent line of opinions striking down campaign-finance regulations.  The answer is that it almost certainly does not.  The Chief Justice also wrote last Term’s decision invalidating the overall limits on how much an individual can contribute to candidates for federal offices.  And he took care in today’s opinion to make clear that, when it comes to elections and campaign contributions, politicians and judges are just different:  the former are not only allowed but “expected” to respond to the wishes of their supporters, while the latter are barred from doing so.  So although supporters of campaign-finance regulation can take some solace in today’s victory, they may not enjoy many future victories unless and until there is a change in the Court’s membership.

Recommended Citation: Amy Howe, In Plain English: Justices finally find speech they do not like – and it’s by (would-be) judges, SCOTUSblog (Apr. 29, 2015, 4:08 PM),