Another Citizens United? High Court Considers Campaign Finance Rules for Judiciary

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Over the past several years, a sharply-divided Supreme Court has sided with the First Amendment when it comes to campaign finance reform, striking down a long standing regulation prohibiting independent campaign spending by corporations as well as rules capping personal campaign contributions in federal elections. Later this year, the justices will determine if laws restricting political fundraising by judges are any different.

Williams-Yulee v. The Florida Bar centers on whether a Florida ethics rule that prohibits judicial candidates from personally soliciting campaign donations violates the First Amendment. Currently, 29 states have similar campaign finance laws in place. The Florida Code of Judicial Conduct provides, in relevant part, that:

A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy.

Lanell Williams-Yulee, who was running for election as a County Court Judge in Hillsborough County, was sanctioned for violating the rule after she drafted and signed a mass-mail letter announcing her candidacy and seeking campaign contributions. She later filed suit, alleging that the campaign finance rule is unconstitutional.

The Florida Supreme Court dismissed the suit. While the court acknowledged that “Canon 7C(1) clearly restricts a judicial candidate’s speech,” and therefore “must be narrowly tailored to serve a compelling state interest,” it concluded that “Florida has ‘a compelling state interest in preserving the integrity of [its] judiciary and maintaining the public’s confidence in an impartial judiciary.’”

In her petition to the U.S. Supreme Court, Yulee cited a circuit split on the issue of whether ethics rules restricting judicial campaign fundraising are constitutional. In addition to Florida’s Supreme Court, the federal courts of appeals for the Third and Seventh Circuits, along with the highest courts of Arkansas and Oregon, have held that such laws do not violate the First Amendment. However, the federal courts of appeals for the Sixth, Eighth, Ninth, and Eleventh Circuits have held otherwise.

It will be interesting to see where the U.S. Supreme Court — particularly the Court’s conservative block — ultimately comes down on the issue. Interestingly, Justice John Paul Stevens saw it coming. He specifically addressed judicial elections in his Citizens United dissent, writing, “At a time when concerns about the conduct of judicial elections have reached a fever pitch, the court today unleashes the floodgates of corporate and union general treasury spending in these races.”

During oral arguments held in January, Stevens and his liberal colleagues seemed sympathetic to the Florida Bar. However, they have all been on the losing side of the Court’s recent campaign finance decisions, which suggests they will be fighting an uphill battle in this case as well. In fact, Chief Justice John Robert all but guaranteed it. “You’re under a great burden,” he told the Florida Bar’s attorney, “in trying to figure out” how to keep judicial elections free from corruption “without contravening the First Amendment.”

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

Another Citizens United? High Court Considers Campaign Finance Rules for Judiciary