Tying Up the First Amendment With Red Tape

20 Jan 2015 | Author: | No comments yet »

Hillsborough case at heart of Supreme Court arguments on judges’ fundraising.

Voters in the Tampa area didn’t think much of Lanell Williams-Yulee’s campaign for county judge in 2010, and the group that regulates Florida’s lawyers didn’t much like her campaign tactics. WASHINGTON — Almost five years to the day after the Citizens United decision reshaped American politics, the Supreme Court on Tuesday will turn its attention to judicial elections.WASHINGTON — She challenged a respected incumbent and lost by a mile, taking only 20 percent of the vote in a bid to sit on the Hillsborough County court.For years, those who favor restrictions on campaign spending have insisted that their real interest lies in fighting corruption, not limiting political speech.

Along with being drubbed in the election, she was hauled before the Florida Bar for violating its ban on personally soliciting campaign contributions by sending a “Dear Friend” letter asking for money. Supreme Court will hear oral arguments Tuesday in a case that could undo state laws around the country that limit judicial candidates from asking potential donors for campaign contributions.

It stems from her 2010 campaign against Judge Dick Greco Jr. and could have sweeping national implications in the way judicial candidates raise money. But 30 of the 39 states with judicial elections have tried to draw the line by forbidding judicial candidates to personally ask for money, saying that such solicitations threaten the integrity of the judiciary and public confidence in the judicial system. Like similar laws in 29 of the other 38 states where at least some judges are elected, it was a straightforward way to reduce a serious threat to judicial independence.

Or perpetuating a lie that the candidate is completely removed from all fundraising activities, leaving the electorate ignorant when they make their choice?” That’s a simplistic view, said Daniel Wallach, a Fort Lauderdale lawyer who filed a friend of the court brief on behalf of three former Florida Supreme Court justices and a number of noted lawyers in the state. “The interest here isn’t just merely quid pro quo corruption. Instead, “the ask” must come from a separate campaign committee, a system designed to insulate judges from bias toward the lawyers and litigants who donate — or choose not to — and then come before them in court. The lawsuit was brought by Lanell Williams-Yulee, a lawyer who was disciplined for writing, signing and sending a fund-raising letter to voters in 2009, when she was running to be a county court judge. Florida’s law allows contributions of up to $1,000 to judicial campaigns, and that limit cannot be significantly lowered (much less banned) without violating the First Amendment.

In state Supreme Court races alone, $207 million was spent between 2000 and 2009, up from $83 million in the preceding decade, according to a study by several groups concerned about money in politics. Marcus Carey, who twice lost judicial elections in Kentucky, said there was no point to requiring that contribution requests be made through intermediaries. “There are fund-raising events,” said Mr.

In 2002, the court struck down rules aimed at fostering impartiality among judges that barred candidates for elected judgeships from speaking out on controversial issues. But judicial candidates in Florida are not allowed to solicit money from potential donors personally, and instead must appoint a “committee” to solicit donations for them. They agree that states have a compelling interest in protecting judicial independence, but argue that the ban on direct requests for cash is futile, since candidates may still establish fund-raising committees and express their gratitude to individual donors. Yet the court’s decision may be more far-reaching: if it finds the Florida ban unconstitutional, Myers said, the bans in states with similar rules will likely be invalidated. “It’s a blanket prohibition on speech, including some speech which is fairly innocuous and probably doesn’t rise to the level of the concerns that were the reasons it was put in place to begin with,” Myers said. But the decision to recuse is generally left up to the individual judge, and the survival of remaining contribution limits under the current Supreme Court is far from certain.

The reasoning: Though the letter would have been entirely legal if signed by members of the candidate’s committee, it violated the personal-solicitation ban because it came directly from Ms. In one recent poll, 87 percent of voters said campaign contributions and spending by independent groups affect judicial decisions, and almost half of state judges themselves agree. Like most campaign-finance restrictions, the speech ban on solicitation places another burden on challengers running for office — particularly those who lack the wealth to finance their own campaigns. Williams-Yulee argued in court papers that states that worry about bias among judges should focus on rules that force judges to recuse themselves in cases where they may have a conflict or limits on the size of campaign contributions. Four former chief justices from those states filed a brief describing their own use of a practice they said was “ingrained in our political and legal cultures.” In an interview, one of the former chief justices, Thomas R.

Phillips, who served on the Texas Supreme Court, added that “dialing for dollars sometimes results in untoward things slipping out during those conversations.” Mr. On the other side, the state bar and interest groups that lament the rising influence of money in judicial elections say the restriction at issue in Florida and the other states is reasonable. The timing is apt, because the country is currently debating the merits of judicial elections, prompted in part by increased campaign spending after Citizens United.

Judicial elections — once sleepy contests removed from the blood sport of politicking — have become multi-million dollar contests in recent election cycles. Former elected chief justices in Alabama and Texas — which permit candidates for judgeships to ask for campaign funds — called on the court to uphold the prohibition and said they are “well-acquainted with the genuine dangers — and sometimes actual abuse” when candidates solicit contributions from lawyers and others. Some of the backers of the limits also have pointed to comments from retired Supreme Court Justice Sandra Day O’Connor, who has suggested that she regrets her vote in the 5-4 decision in 2002 to strike down the rules on what judicial candidates can say.

Candidates for state high courts spent at least $5.2 million on television ads, with Michigan candidate Richard Bernstein spending an estimated $1.3 million for his successful election campaign, according to the Center for Public Integrity’s analysis of data from media tracking firm Kantar Media/CMAG. That’s something to keep in mind the next time self-appointed campaign-finance reformers — whose legal briefs unanimously support the Florida law — tell us that their proposed restriction won’t impact our First Amendment freedoms.

Florida Bar, No. 13-499, concerns Lanell Williams-Yulee, who lost a race for a seat on the county court in Hillsborough County, Fla., which includes Tampa. But in a friend-of-the-court brief, the American Civil Liberties Union wrote that “campaign speech by candidates for judicial office, like campaign speech by candidates for other offices, is entitled to the highest degree of First Amendment protection.” Such a view was underscored by Justice Antonin Scalia’s majority opinion in the 2002 ruling on The Republican Party of Minnesota v. But if that risk exists, it certainly does not disappear merely because a request for money comes from the candidate’s handpicked “committee” rather than directly from the candidate himself. In barring not only one-on-one requests but also mass mailings and speeches to large groups, one of her briefs said, Florida’s solicitation ban censors speech that is unlikely to give rise to judicial corruption. Whatever your position on the risk of corruption posed by judicial elections, nothing is gained by hiding the fact that fundraising is a necessary part of a competitive campaign.

The ban also does too little, the brief continued, by allowing candidates to raise money through campaign committees and then personally thank their donors. To name another: The 2002 McCain-Feingold law’s absurd “Stand By Your Ad” requirement, which compels candidates to waste valuable advertising time informing listeners that—surprise—they “approve this message.” Rules like this and Florida’s ban accomplish nothing while forcing political speakers to hire an army of lawyers to ensure compliance.

Further confirmation of this sad fact: the recent travails of Mayday PAC, a group founded by Harvard Law professor and campaign-finance regulation proponent Lawrence Lessig, that is now under federal investigation for failure to comply with ad disclaimer rules in the 2014 cycle. Does anyone believe that judges in neighboring Georgia, where a similar solicitation ban was struck down by the 11th Circuit Court of Appeals in Weaver v.

Here you can write a commentary on the recording "Tying Up the First Amendment With Red Tape".

* Required fields
All the reviews are moderated.
Our partners
Follow us
Contact us
Our contacts

About this site