Here’s an old Chicago joke: A judge comes to a lawyer preparing to try a case. “The other side just gave me $10,000 to decide for them,” he says. “You have two choices: you can give me $20,000 to decide for you.”
“What’s other choice?” the lawyer says.
“Give me $10,000 and I’ll just decide based on the law.”
A judge who actually tried this would be in trouble. Flat-out bribery is illegal. But very often the real scandal in a society is what is legal. What about a judge who says, “You might want to know that the other firm has contributed to my campaign fund”?
Currently 39 out of the 50 states have a system of popular election for judges. All but nine of those states have laws providing that judges and judicial candidates “shall not personally solicit campaign funds, or solicit attorneys for publicly stated support.” They may establish campaign committees to raise funds; but the hey-given-me-money-lately sidebar is forbidden.
The language above is Florida’s version of the rule. Williams-Yulee v. Florida Bar, a case to be argued before the Supreme Court Tuesday, tests whether that rule violates the First Amendment.
Lanell Williams-Yulee wanted to be a county judge in Hillsborough County, Florida, which includes Tampa. She sent out a cheery mass mailing that said, “An early contribution of $25, $50, $100, $250, or $500, made payable to ‘Lanell Williams-Yulee Campaign for County Judge’, will help raise the initial funds needed to launch the campaign and get our message out to the public.” She eventually lost the election; meanwhile, the Bar filed a complaint with the state Supreme Court. The Court, through a referee, found that she had thought, in good faith, that she was not violating the no-direct-solicitation rule; nonetheless, it said, she was guilty. In addition to the finding of guilt, she was required to pay the costs of the proceedings against her.
Williams-Yulee, represented by Supreme Court superlawyer Andrew Pincus, petitioned for certiorari, asking the Court to hold that any rule prohibiting direct solicitation of campaign funds violates the First Amendment. The rule she seeks would protect not only mass mailings like her own, but also discreet requests in chambers made by judges to the lawyers appearing before them.
Most people, I suspect, intuitively think that there’s something wrong with a system in which judges ask citizens and lawyers to write checks. But the landscape of the First Amendment is changing so rapidly that William-Yulee seems likely to win at least a partial victory—the Court could easily hold (as the American Civil Liberties Union has asked it to in an amicus brief)—that a no-solicitation rule can’t be applied to mass mailings “presenting no legitimate cause for concern of undue influence such as [Williams-Yulee’s] mass mailing here.” It seems likely that at least some members of the Court will be eager to go further, and strike down any rule against judges and candidates asking directly for funds.
In recent years the Court has held that states can’t enforce a rule forbidding judicial candidates from announcing their positions on hotly contested legal issues. A number of states thought it was unseemly to have candidates stumping for judgeships on platforms of “Hang ‘em high!” or “Weed should be legal.” But the Court in a 2002 case reasoned that if a state chooses to fill judgeships by election, judicial candidates had to have the same speech rights as any other politicians: “the First Amendment does not permit [the state] to achieve its goal by leaving the principle of elections in place while preventing candidates from discussing what the elections are about.”
This is the core of Williams-Yulee’s argument: In an elective system, judges are politicians, and can’t be treated differently from other candidates for office. “The State has the very same interest [in integrity] with respect to other elected officials but limits its ban on solicitations of financial support to judicial candidates,” her brief argues. In a 2009 case, however, the Court recognized that even elected judges have to be different in some ways. A West Virginia judge was narrowly elected with $3 million in contributions by a businessman with a case pending before his court. The judge was required to recuse, or refuse to sit, on that very case, the Court said. “[T]here is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds ... when the case was pending or imminent,” Justice Anthony Kennedy wrote. With other elected officials, the Court majority has been adamant that “disproportionate influence” is not a problem. In fact, Chief Justice John Roberts wrote in last year’s case of McCutcheon v. Federal Election Commission, influence is, and should be, a factor motivating donors to federal candidates. Donating money is “a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns,” he wrote. He quoted the opinion in Citizens United v. Federal Election Commission: “Ingratiation and access ... are not corruption.”
No one, I suspect, could argue with a straight face that allowing donors to buy gratitude and access to judges could be a central feature of any real democracy. Instead, the opponents of the solicitation rule fall back on abstract statements about the First Amendment. An amicus brief for the Thomas Jefferson Center for Free Expression (one of the best First Amendment advocacy shops going), begins this way: “Speech in the context of electoral contests receives the greatest protection under the First Amendment.” From this it concludes that the “state does not have a compelling interest in preventing the mere appearance of potential for bias as distinct from preventing a high probability of actual bias.”
I yield to no one in my appreciation for free expression, political or otherwise. But in the years since Citizens United, First Amendment dialogue has increasingly divorced itself from any practical considerations. When did preserving public confidence in the courts cease to be “compelling”? When did the appearance of unfairness become “mere”? Opponents of the rule argue that since states allow judicial campaign committees to raise funds, they have to allow judges to do the same. The logic of this argument is elusive; there is a difference between being asked by an employee to give money, and being asked by the judge himself. In addition, they argue, states that object to the influence of money can simply stop electing judges. They could, but in practical terms, judicial election is going to be with us for a long time. The question should be how states can retain their inherited systems and preserve some of the independence the federal judiciary guards for itself.
Anyone who follows state politics knows that rich donors and business interests are flooding state judicial races with enormous donations. The aim is to buy a favorable judicial climate at the state level—to transform “ingratiation and access” into legal doctrine. There’s some irony in the fact that the rules governing judicial elections will be decided by life-tenured Justices. Sheltered by no-camera rules in their courtroom, no-demonstration rules on their grounds, and no-comment rules on their own potential conflicts, the nine Justices will decide whether states will be permitted even the most modest attempts to keep their own judges clean.