- The US Supreme Court has ruled, 5-4, that states can prevent judicial election candidates from soliciting campaign contributions. Read the ruling (Williams-Yulee v. Florida Bar) here.
- The case revolved around a candidate for a judge seat in Florida who sent out a mass mailing asking for campaign contributions and solicited donations on her website. She was fined for violating the state's code of judicial conduct, so she sued, arguing that the restriction violated her right to free speech.
- But a majority of justices disagreed. "The State may conclude that judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity," Chief Justice John Roberts wrote in his majority opinion.
- Roberts was joined by the court's four liberals. The other conservatives on the court, including sometime swing vote Anthony Kennedy, dissented, arguing that the restriction unfairly infringed judicial candidates' right to free speech.
- According to NPR, out of the 39 states with some judicial elections, 30 of them "bar personal solicitations" of campaign contributions "in order to preserve judicial impartiality."
- The decision does not ban judicial candidates from raising money. But it lets states limit such fundraising efforts if they so choose.
Roberts argued that judges are special, unlike those grubby politicians
The ruling's most surprising aspect is that Chief Justice Roberts has abandoned the conservatives on this issue, to side with the liberal supporters of limits on campaign fundraising. Rick Hasen, a law professor at University of California Irvine, called the decision "a HUGE win for those who support reasonable limits on judicial elections," and said that Roberts's vote in particular was "surprising, welcome, and momentous."
Roberts's rationale was that judicial fundraising should be treated very differently than political fundraising. "A judge's role differs from that of a politician," he writes. "Unlike a politician, who is expected to be appropriately responsive to the preferences of supporters, a judge in deciding cases may not follow the preferences of his supporters or provide any special consideration to his campaign donors."
He relies on the argument that upholding "public confidence in the integrity of the judiciary" is a compelling interest for states. "Simply put, 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," he writes.
Interestingly, Roberts says the Florida restriction only applied to "a narrow slice of speech." He emphasized that judicial candidates are still "free to discuss any issue with any person at any time; to write letters, give speeches, and put up billboards; to contact potential supporters in person, on the phone, or online; and to promote their campaigns through the media. Though they cannot ask for money, they can direct their campaign committees to do so."
Scalia disagreed, saying that the free speech of judicial candidates should be protected
But the conservative justices dissented — arguing that judicial candidates' right to free speech should include a right to personally raise campaign money, and that the Court was effectively muzzling them.
In his dissent, Justice Scalia complained that the decision "flattens one settled First Amendment principle after another." He argued that the Supreme Court has "accorded robust protection to depictions of animal torture, sale of violent video games to children, and lies about having won military medals." Why, then, he asked, was upholding public confidence in judicial independence such a special case? "The First Amendment is not abridged for the benefit of the Brotherhood of the Robe," he wrote.
Justice Kennedy agreed that the decision inappropriately restricted the speech of judicial candidates. He wrote his own dissent to "underscore the irony in the Court's having concluded that the very First Amendment protections judges must enforce should be lessened when a judicial candidate's own speech is at issue." He argued that in cutting off the ability to personally raise money, the court is "cutting off one candidate's personal freedom to speak."