Academic journal article Harvard Law Review

First Amendment - Freedom of Speech - Judicial Campaign Speech

Academic journal article Harvard Law Review

First Amendment - Freedom of Speech - Judicial Campaign Speech

Article excerpt

States have selected judges by popular election since the early nineteenth century, often as a way of increasing judicial accountability to the public. (1) As campaign finance jurisprudence has developed over the past forty years, (2) the Supreme Court has weighed in on the question of what it means to be an elected official, (3) and on how that meaning is different when an elected official is a judge. (4) Last Term, in Williams-Yulee v. Florida Bar, (5) the Supreme Court held that a state prohibition on the personal solicitation of campaign funds by judicial candidates did not violate the First Amendment. (6) However, by not engaging in an analysis under the Due Process Clause, the Court provided an incomplete account of the constitutional interests at stake in cases regarding speech by judicial candidates. Instead, Williams-Yulee heightened a tension between cases governing the regulation of speech by judicial candidates and cases like Citizens United v. FEC (7) that have deregulated campaign finance by vigorously protecting political expenditures under the First Amendment.

In 2009, Lanell Williams-Yulee (Yulee), a candidate in a Florida judicial election, sent a fundraising letter to potential supporters and posted it on her campaign website. (8) After Yulee lost the election, the Florida Bar took steps to discipline her for violating its rules, which require that judicial candidates comply with Florida's Code of Judicial Conduct. (9) At issue was the Code's Canon 7C(1), which prohibits judicial candidates from personally soliciting campaign funds. (10) The Florida Supreme Court appointed a referee, who recommended that Yulee pay the Bar $1860.30 in costs and be publicly reprimanded. (11) On appeal to the court, Yulee argued that Canon 7C(1) was an unconstitutional infringement of her right to free speech. (12) Acknowledging that the canon restricted speech, the court analyzed it under the First Amendment using strict scrutiny, which requires speech restrictions to be narrowly tailored to serve a compelling government interest. (13) Drawing upon judgments in states with similar rules, the court found a compelling interest in the goal of "protecting the integrity of the judiciary and maintaining the public's confidence in an impartial judiciary." (14) The court then found the prohibition narrowly tailored because it targeted only the personal solicitation and receipt of funds, which the court characterized as activities that unavoidably create the "appearance of impropriety." (15) The ban thus provided candidates with "ample alternative means" for fundraising through the use of campaign committees. (16)

The Supreme Court affirmed. (17) Writing for the Court, Chief Justice Roberts (18) held that Canon 7C(1) survived First Amendment scrutiny. (19) However, the majority split as to the applicable level of scrutiny. Chief Justice Roberts found that the appropriate test was strict scrutiny, (20) citing a history of using strict scrutiny to review the regulation of fundraising activities benefiting charitable causes and reasoning that political fundraising merits at least as much scrutiny. (21) Yulee conceded the existence of a compelling interest, (22) which the majority characterized as an interest "in safeguarding 'public confidence in the fairness and integrity of the nation's elected judges'" (23) and an interest in preventing campaign contributions or lack thereof from actually influencing judges. (24) Distinguishing the assertion of a plurality in McCutcheon v. FEC (25) that elected officials affirmatively should be "responsive" to their financial supporters, (26) the Chief Justice noted that "the role of judges differs from the role of politicians" and that, unlike other elected officials, judges should not grant "special consideration" to their campaign donors. (27) He concluded that the line of Supreme Court cases addressing campaign finance should have "little bearing" (28) on Yulee's case and asserted that "[a] State's decision to elect judges does not compel it to compromise public confidence in their integrity. …

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