The U.S. Supreme Court declared last week in Williams-Yulee v. Florida Bar that “judges are not politicians” even in states that elect rather than appoint their judges, and that narrowly tailored restrictions on judicial campaign activity further the state’s “compelling interest” in protecting the integrity of the judiciary.1 In doing so, the court did what the New York State Court of Appeals had done 12 years ago, in much the same language.
The issue in Williams-Yulee involved Florida’s ban on the personal solicitation of campaign funds by candidates for elected judicial office. New York is among 30 states with a similar ban.2 The challengers argued that it is an unconstitutional limitation on a judicial candidate’s speech to prevent him or her from directly asking a potential donor for money. Supporters of the ban countered that the integrity of the judiciary is fatally compromised if judges ask for money from lawyers and litigants who are likely to appear before them.
Given the Supreme Court’s recent history of lifting constraints on corporate and other big-money spending in election campaigns, the smart money was on Florida’s ban being overturned.3 But the outcome of Williams-Yulee was not a foregone conclusion, since the court had also recently upheld public confidence in the integrity of the judiciary by requiring the disqualification of a judge from a case in which one of the parties had spent $3 million to get him elected to the bench.4
In Matter of Raab v. State Commission on Judicial Conduct, the issue before the New York Court of Appeals was whether certain other restrictions on political activity by judicial candidates were constitutional or contrary to the speech protections of the First Amendment.5 The specific rules at play in Raab were different than the one at issue in Williams-Yulee, but the New York court’s analysis and conclusion in 2003 were the same as enunciated by the Supreme Court.
The Florida judge in Williams-Yulee had admittedly signed and sent letters to potential supporters, asking for campaign contributions. The New York judge in Raab had admittedly contributed money to the local political party whose nomination he was seeking. Both judges argued that the 2002 Supreme Court decision in Republican Party of Minnesota v. White protected their conduct and rendered the rules they had violated unconstitutional.6 White had held that the so-called “announce clause” of the Code of Judicial Conduct, which prohibited judicial candidates from announcing their views on disputed legal and political issues, was unconstitutional.
A majority of states, including New York, had already repealed the “announce clause” years before the White case originated. But numerous other political restrictions remained in place, among them the very conduct that had occurred in both Williams-Yulee and Raab. Both the Court of Appeals and the Supreme Court determined that those remaining rules at issue were narrowly tailored to advance public confidence in the integrity of the judiciary without unduly restricting the ability of judicial candidates to reach voters.
In applying strict scrutiny to Raab, the Court of Appeals noted that while candidates have the right to communicate with the electorate, “litigants have a right guaranteed under the Due Process clause to a fair and impartial magistrate and the State, as the steward of the judicial system, has the obligation to create such a forum and prevent corruption and the appearance of corruption.”7 In Williams-Yulee 12 years later, the Supreme Court said the same thing in different words: “Judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity. … Simply put, Florida and most other States have concluded that the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.”8
In Raab, the Court of Appeals said: “Not only must the State respect the First Amendment rights of judicial candidates and voters but also it must simultaneously ensure that the judicial system is fair and impartial for all litigants, free of the taint of political bias or corruption, or even the appearance of such bias or corruption. … Once elected to the bench, a judge’s role is significantly different from others who take part in the political process and, for this reason, conduct that would be appropriate in other types of campaigns is inappropriate in judicial elections.”9
In Williams-Yulee, the Supreme Court said that “a state’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections. … States may regulate judicial elections differently than they regulate political elections, because the role of the judge differs from the role of politicians.”10
As a practical matter, Williams-Yulee will not have much direct impact in New York where, overwhelmingly, judges and judicial candidates have long understood and abided by the no-solicitation rule. The Commission on Judicial Conduct has imposed few public disciplines regarding this rule precisely because it is so rarely violated. Judges know that they cannot ask supporters for money directly, and that instead they must create committees of “responsible persons” to do that for them and thereby insulate themselves and the judiciary itself from the most unseemly aspect of running for office.11
Nationally, however, the result could be seismic. Lower federal courts may now refrain from, or at least be more cautious about, applying White and Citizens United to aspects of judicial campaigns that were not addressed or contemplated in either case. Judicial conduct commissions that were hesitant to enforce the personal solicitation clause and certain other campaign limitations will more likely do so now that the Supreme Court has spoken.
First Amendment challenges to promulgated restrictions on political activity by judges will likely never end, but their prospects are now surely diminished. Following the Supreme Court’s “strict scrutiny” blueprint in Williams-Yulee, as we in New York have already been guided by the Courts of Appeals roadmap in Raab, I expect that judicial conduct commissions around the country will enforce these rules with more confidence than they likely had even a week ago.
1. 575 US ___ (2015), Slip Op. No. 13-1499, pp. 1, 8-9
2. 22 NYCRR 100.5(A)(5)
3. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010)
4. Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)
5. 100 NY2d 305 (2003)
6. 536 US 765 (2002)
7. 100 NY2d at 313
8. Slip Op. p. 9
9. 100 NY2d at 315, 316
10. Slip Op. p. 10
11. 22 NYCRR 100.5(A)(5)