U.S. Supreme Court to review solicitations bans in judge races, NYT reports

19 Jan 2015 | Author: | No comments yet »

Argument preview: Judges, politics, and money.

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.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. In the other corner: Lanell Williams-Yulee, a losing county court candidate who ran afoul of that canon in 2009 and was reprimanded for signing a fundraising letter.

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. 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 obvious lesson, early on and now, is that citizens trust themselves to handle that task fairly wisely and trust that the judges who are chosen that way will do the job impartially. 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. On the other hand, the concept of judges as neutered referees without ideological leanings was debunked by President Obama in 2009 as he considered his first Supreme Court nomination, which eventually went to Sonia Sotomayor. Nobody would suggest that their selection is totally free of politics, but potential federal judges are spared from addressing campaign rallies, forming political alliances, raising funds and kissing babies.

In modern times, some uncertainty has crept in about those assumptions, especially as the cost of elections has escalated, including the price of running for a judgeship. 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. Appointment of state judges was also the rule in the earliest years of this country, but in the 19th century some states moved to making the position elective. Only Connecticut, Delaware, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, Rhode Island, South Carolina, Vermont and Virginia appoint all judges. Today, 39 states choose some or all of their judges in elections. (In California, trial court judges are elected, while appellate court judges are appointed by the governor and confirmed by a commission, and later face the voters in retention elections.) Yet even as they have allowed candidates for judge to campaign, raise funds and spend money on advertising, many states have adopted regulations that treat judicial candidates differently from candidates for legislative and executive offices.

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. 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.

Judges are still elected in thirty-nine states, and in all but nine of those states, there is a law or an ethics code provision that bans a judicial candidate from personally asking for campaign donations. That, it appears, is more preferable as a remedy than getting rid of judicial elections altogether, or relying on judges to disqualify themselves in specific cases.

A civic-minded Tampa lawyer, who decided in September 2009 that “the time has come for me to seek elected office,” is at the center of a case testing the constitutionality of that kind of ban. 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. Judicial elections — once sleepy contests removed from the blood sport of politicking — have become multi-million dollar contests in recent election cycles. In challenging Florida’s rule, Williams-Yulee argues that it curtails her freedom of speech, but is not “narrowly tailored” to achieve a compelling interest in preventing corruption.

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.

The Bar’s lawyers then filed a short brief, joining in urging the Justices to settle the issue, while promising a vigorous defense on the merits of its ban. 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. In a landmark 1976 case, the court said that the 1st Amendment is not violated by election laws that seek to prevent the “appearance of improper influence” over candidates. That’s a sensible position on the part of the court, yet a ruling for Williams-Yulee would weaken that principle, not just in cases involving judicial elections but also in cases involving other sorts of restrictions, including limits on contributions to candidates for Congress and the presidency. 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.

The ban also does too little, the brief continued, by allowing candidates to raise money through campaign committees and then personally thank their donors. Since the ban is an across-the-board restriction based directly on what can be said, and thus must be judged by the rigorous standard of “strict scrutiny,” the Florida restriction has little chance of surviving such review, according to Williams-Yulee. Nothing that the Florida ethics code requires will stop the candidate from knowing who contributed, or how much, and from writing thank-you notes to those who do give, so the ban cannot achieve the supposed purpose of insulating the candidate from influence, according to that brief. No one would believe, Williams-Yulee contended, that a person with money who does not give in response to a mass mailing is going to face bias in a future case before that judge, if she were to be elected. A fourth left the court in connection with a scandal including draft opinions ghostwritten by lobbyists. “Florida is unlike all the other states that have elected judges,” said Mr.

The mass mailing was a decidedly impersonal solicitation and did not yield contributions, let alone the quid pro quo exchanges that judicial campaign donations may invite. Recommended Citation: Lyle Denniston, Argument preview: Judges, politics, and money, SCOTUSblog (Jan. 19, 2015, 12:08 AM), http://www.scotusblog.com/2015/01/argument-preview-judges-politics-and-money/

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