Conservative Supreme Court justices sounded skeptical Tuesday about Florida’s ban on judicial candidates personally soliciting campaign contributions, setting up another closely divided decision over money and political speech.
While some justices warned of elected judges potentially strong-arming contributors, pointed questions and declarations by others hinted at a slim majority opposing Florida’s direct-solicitation ban.
A quick back-and-forth between Justice Stephen Breyer and Chief Justice John Roberts Jr. highlighted the court’s enduring split, previously seen in the Roberts-led court striking down other campaign finance restrictions.
“Justice shall not be sold, nor shall it be denied,” Breyer recited, citing an old judicial canon. “That’s at least 800 years old.”
“Eight hundred years ago, judges were not elected,” Roberts retorted, adding that “you have a situation where the people in the state have said we’re going to have judges who are elected, and we’re going to recognize you can contribute to judges because there are contribution limits.”
Florida’s Code of Judicial Conduct states that “a candidate . . . for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds.” A number of the other 39 states with elected judges have similar restrictions.
Instead of personal solicitations, judicial candidates are supposed to route their fundraising efforts through their campaign committees. This stricture does not apply to candidates for legislative office, who are permitted to personally hit up potential donors.
First-time judicial candidate Lanell Williams-Yulee ran afoul of the Florida rule when she launched a campaign in 2009 for county court judge in Hillsborough County. The county includes the city of Tampa.
As part of her campaign kickoff, Williams-Yulee signed a mass-mailed letter that asked for contributions, with recommended amounts ranging from $25 to $500. No contributions were received in response to the mailing, and incumbent Judge Dick Greco Jr. easily defeated her in the August 2010 balloting.
The Florida Bar filed a complaint against Williams-Yulee, who received a public reprimand and was ordered to pay $1,860.30 to cover costs.
“It’s essential to a stable democracy, having a judiciary which avoids both the reality and the appearance of corrupt influence,” Barry Richard, a Tallahassee-based attorney for the Florida Bar, told the court Tuesday.
The rules are particularly important, supporters say, because of the flood of money entering judicial races. From 1990 to 1999, judicial candidates raised about $83.3 million. Judicial candidates then raised $206.9 million over the next 10 years, Emory University Law School Professor Joanna M. Shepherd found.
Breyer and Justice Sonia Sotomayor on Tuesday stressed the extra pressure that judges can bring to bear on potential contributors, particularly those who might be appearing before them in the future.
“Isn’t it inherent in the lawyer-judge context that people are going to say yes?” Sotomayor asked rhetorically, and suggested that “there is some form of personal coercion in the presence of the judge asking for money.”
Andrew J. Pincus, the attorney for Williams-Yulee, countered that since “the state has chosen to choose its judges via election” then soliciting campaign contributions necessarily comes with the territory.
“Money is essential to getting the candidate’s message out,” Pincus said.
Justice Antonin Scalia, a skeptic of campaign finance restrictions in the legislative and presidential arenas, said the fact that lawyers are likely to contribute to judges “doesn’t show any corruption whatsoever.” Instead, Scalia offered the reassurance that “it just shows that lawyers want good judges.”
Justice Clarence Thomas, in keeping with his standard practice, was the only justice not to speak or ask questions during the hourlong oral argument. The court’s decision is expected by the end of June, when the current term ends.