The same ideological divide that has led the Supreme Court to strike down various campaign finance regulations showed itself on Tuesday, as justices heard oral arguments in the next case that could allow more big money into politics.
A Florida candidate for county judge is challenging the state's rules that prohibit judicial candidates from personally asking for campaign contributions. Supporters say the rules help ensure that judges' opinions won't be based on their campaign contributions—and that the public won't perceive them to be.
But the Supreme Court under Chief Justice John Roberts has been wary of campaign finance law—the landmark Citizens United ruling opened the door to a flood of private money in elections, and just last year the Court struck down certain limits on donations to congressional campaigns.
And the Court's more conservative justices were deeply skeptical of the ban on personal fundraising in judicial races.
While the case is about Florida law, its implications are much broader—most of the country prohibits judicial candidates from doing their own fundraising. The case originated when Lanell Williams-Yulee, a candidate for county judge, sent out a mass fundraising letter and was punished by the state Supreme Court.
The Roberts Court's more conservative justices questioned whether Florida's policy is actually safeguarding against corruption or the perception of corruption. After all, they said, judicial candidates can still see who their donors are, and their fundraising committees could always remind donors that the judge will, eventually, see whether they ponied up.
Florida also allows judges to write thank-you notes to their donors. For one especially long stretch, the justices' line of questioning wasn't too different from a couple working on their wedding registry: If it's legal to send a personalized thank-you note for a gift, why isn't it OK to personally ask for that gift?
"Florida lets judges write thankÂ-you notes for contributions, so there is direct contact, and the person who has given the money knows that the judge knows that he gave it," Justice Stephen Breyer said.
Much of the concern over judicial candidates' fundraising stems from fears that lawyers will feel pressure to contribute to the judges who hear their cases.
"Suppose I'm a judge and I say, 'Dear Joe, you've been in my courtroom many times, and I hope I've always been fair and I know you're going to be here some more times in the future, and I hope I always will be fair. And you know I'm running for judge, and I'd really like a contribution of a thousand dollars. Signed Judge Smith,' " said Justice Elena Kagan.
But, Roberts noted, Florida's ban isn't limited to fundraising from lawyers. It prohibits all in-person fundraising. What would be the harm, Roberts asked, in allowing a judicial candidate to call up an old college friend, who isn't even a lawyer, asking for help with his campaign?
Justice Samuel Alito also questioned whether a letter from the candidate's campaign manager would be any less coercive than a letter from the candidate.
"A letter could have been sent by a committee, and the letterÂÂ could have said that, [the candidate] gave us your name and asked us to solicit a contribution from you, and that's what we're doing. And the letter could ... say, 'And we'll let the judge know if you gave a contribution,' " Alito said while questioning the Florida Bar's attorney. "Now, why was there any greater damage done by what she did as opposed to what you admit she could have done?"
Still, it wasn't clear Tuesday whether the Court's conservative bloc will have the five notes needed to strike down Florida's rules, or how broad such a decision might be. Justice Anthony Kennedy, the likely swing vote in the case, asked few questions and didn't indicate much, beyond saying—in the context of another hypothetical example—that he would find it difficult to say when certain restrictions on face-to-face fundraising would be acceptable.
The case is Williams-Yulee v. The Florida Bar. A decision is expected by summer.