Back in 2009, Lanell Williams-Yulee, a Tampa, Florida, attorney, made a decision to run for the office of county court judge. She began her campaign by sending a mass mailing to potential supporters, asking for contributions ranging from $25 to $500. Her appeal did not attract any response, but it did engender a complaint from the Florida bar, which charged her with violating a rule of judicial ethics by personally soliciting donations from potential supporters. But Williams-Yulee claimed that the Florida bar’s rule violated the First Amendment by wrongfully restricting her speech.
The Florida Supreme Court rejected her First Amendment claim, reprimanded her for not adhering to the ethics rule, and ordered her to pay court costs of nearly $1,900.
Williams-Yulee’s case is now before the U.S. Supreme Court, and the question it will decide is whether a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment.
The answer will favor Williams-Yulee if she can show that the Florida bar’s ban on personal solicitations violates her First Amendment’s free speech rights. That may depend, however, on whether judges are deemed to be different, in some important respects, from other public officials, such that judges’ speech must be limited.
Politicians, legislators and others who are running for political offices are in general free to personally solicit donations for their campaigns. Indeed, the Supreme Court has in recent years protected campaign financing in decisions such as Citizens United v. Federal Elections Commission, No. 08-205, 558 U.S. 310 (2010), and McCutcheon v. Federal Election Commission, 133 S.Ct. 1242 (2013). Those cases opened the floodgates that allowed virtually limitless amounts of money to flow, in one way or another, to political campaigns under the aegis of political speech. Giving money, we have learned, is considered speech and protected under the umbrella of the First Amendment.
Some commentators think that the campaign contributions members of Congress and other politicians seek and receive from Washington lobbyists and other special interest groups are not, on the whole, without serious ethical problems. Members of Congress are known to spend much of their time seeking financial support for their re-election bids. The case against it has been made in at least two important books, the first by Harvard Law School professor Lawrence Lessig in “Republic, Lost: How Money Corrupts Congress—and a Plan to Stop It,” where Lessig uses the term “dependency corruption” to describe the effect of a constant search for money on the integrity of our political processes; and the second, by constitutional scholar Zephyr Teachout, in “Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United,” a book that traces American policies on the ethical effects of gifts to government officials since the founding era.
As noted earlier, however, judges may be different from legislators and other politicians. Perhaps now we can see why they must be different in order to avoid as much as possible the temptations toward corruption. The people elect the members of the executive and legislative branches of government. Thirty-nine of our 50 states likewise hold elections for some or all of their judges. But here’s the difference: legislators and members of the executive branch, from the president on down, serve the people and constitute the “political” branches of the government. They look to the people to elect them and retain them in office, based upon public approval and satisfaction with their performance.
But the judicial branch is supposed to be “above the fray.” Judges do not serve the people, at least not directly or primarily; they serve the law, which is their primary duty; upholding the Constitution and the law is their essential calling. In this way they serve the interest of litigants and the public only indirectly and secondarily. So there are good reasons why judges are not “in the fray” and lack agency within the political branches: judges must be independent, impartial and fair, and not beholden to donors whose influence might compromise and corrupt their judicial virtues.
Many Americans are likely to agree that they should have the right to elect the judges in their states. But many other Americans, including many judges, are not happy with the election of judges; they favor a process of “merit selection,” which they claim will result in the appointment of highly qualified judges who are not beholden to voters’ views or preferences. It is notable that on this subject, retired U.S. Supreme Court Justice Sandra Day O’Connor is a vocal critic of electing judges.
Here in Pennsylvania, retired Superior Court Judge Edmund B. Spaeth Jr.—often thought of as one of Pennsylvania’s most respected and distinguished judges—has long opposed the election of judges. When his term as president judge of the state Superior Court was about to end, he decided not to seek re-election in order to avoid asking donors for money and conducting a campaign, which, from prior experience, he had found “mostly meaningless” for a judicial candidate. For him, the decision was a matter of principle.
The reasons a judge might refuse to ask for or accept campaign contributions are multiple. As U.S. Supreme Court Justice Ruth Bader Ginsburg said during oral argument in this case, judges should be “above the fray,” and Justice Antonin Scalia’s remarks were similar, to the effect that “there are things we just don’t let judges do, like publish op-eds in newspapers to respond to criticism of the court’s decisions. Both Ginsburg’s and Scalia’s remarks were referring to the “dignity of the office” of a judge. And Spaeth’s decision might also be construed in that way.
Florida’s ethics rule, however, has an interesting twist. Although personal appeals for donations are forbidden, campaign committees are permitted to handle donations on the candidate’s behalf and inform judges about donors’ identities, which permits judges to acknowledge those donations. This would appear to contradict the purpose of the ban on personal solicitations, which is to avoid a direct link between judges and donors.
This direct link is the harbinger of some ethical strains: once donors are known, judges may learn more about their interests and motives, their corporate, business and professional values, and much more. The danger then is that the judges will become more like the members of the political branches of the government, serving the interests of the donors and turn away, however slightly, from serving the law.
As noted above, 39 states elect some of their judges. Thirty of those states have rules in their ethical codes that forbid judicial candidates to make personal requests for donations. Thus, a majority of the states have banned such requests. But if their state codes have a rule like Florida’s, banning personal requests but allowing a judge to know who has donated, and allowed also to send those donors thank you notes, they will not be helping their judges to adhere to a strong ethical norm. They may, on the contrary, be inviting the very habits they wish to ban from the practices of judges and judicial candidates.
It is notable that there is significant disagreement among the federal courts on the ban of candidates soliciting funds for their campaigns. At least three state supreme courts and two federal appeals courts uphold the ban, whereas four federal appeals courts have struck down the ban. In Florida itself, there is a conflict between the state’s Supreme Court, which upholds the ban, and the U.S. Court of Appeals for the 11th Circuit, which includes Florida.
Finally, a 2013 survey, commissioned by the Brennan Center for Justice at New York University School of Law, shows that a vast majority of American voters fear that campaign donations skew judges’ decisions. That means that judges who have received donations, especially those they solicited, have the appearance of impropriety for the general public. What we need, arguably, is a rule far stricter than the Florida rule. We should have a rule that completely isolates judges and candidates from donors and money. Without that, the judiciary moves closer to the political branches’ characteristic embrace of donors and their donations, which are fraught with ethical danger..
Charles A. Kelbley is a Philadelphia lawyer. Previously, he was a professor of constitutional law at Fordham University School of Law and a visiting professor of law and social policy at Bryn Mawr College. He is working on a book on the amendments to the U.S. Constitution. His email is email@example.com.