Academic journal article The Yale Law Journal

Williams-Yulee and the Anomaly of Campaign Finance Law

Academic journal article The Yale Law Journal

Williams-Yulee and the Anomaly of Campaign Finance Law

Article excerpt

In 2015, the U.S. Supreme Court held in Williams-Yulee v. Florida Bar that states may prohibit candidates for judicial office from personally soliciting campaign donations in order to protect the appearance of judicial integrity. (1) For only the third time in its history, the Court upheld a law subjected to strict scrutiny under the First Amendment's Free Speech Clause. (2) Many commentators noted that the opinion employed a heavily watered-down version of strict scrutiny analysis to reach this result. (3) Indeed, as Justice Alito's dissent stated, the judicial ethics canon at issue was "about as narrowly tailored as a burlap bag." (4) As the decision filters down into the lower courts and into other areas of law, Williams-Yulee s forgiving form of tailoring analysis could unduly dilute what should be the most protective level of judicial scrutiny. There is already some evidence, albeit limited, of such dilution. (5) Taken at face value, then, Williams-Yulees tailoring analysis could fundamentally alter First and Fourteenth Amendment doctrine. (6)

Williams-Yulee was not a fluke. Rather, it was the result of the Court's treatment of many campaign finance regulations as core speech restrictions subject to strict scrutiny. When the overwhelming force of strict scrutiny analysis meets an equally powerful interest, such as judicial integrity, one or the other must fall. The Court ultimately chose to abandon the former. Yet there is a legally sound alternative that the Court did not consider. Instead of struggling within the confines of their strict scrutiny framework, thereby damaging its structure, the Justices should simply have applied a different framework. This Comment argues that the Court could have avoided the First Amendment dilemma in Williams-Yulee--and could prevent similar dilemmas in the future--by deciding campaign finance cases under its broader election law doctrine, rather than its pure First Amendment doctrine. (7)

The Court's analysis of other aspects of the election process--such as ballot access, political party activities, and voting rights--has evolved along a different track from that of campaign finance. In a series of cases, most notably Anderson v. Celehrezze (8) and Burdick v. Takushi, (9) the Supreme Court developed a flexible balancing test to determine the constitutionality of most election regulations. (10) The Burdick test, as this balancing act is sometimes called, is the closest standard the Court has to a Grand Unified Theory of Election Law. (11) By folding campaign finance into the Burdick framework, the Court could decide cases like Williams-Yulee without invoking strict scrutiny, and without creating negative repercussions throughout First and Fourteenth Amendment law.

This Comment enters an existing debate over how courts should analyze campaign finance laws and other election regulations. Judges and authors have noted that the Court has left campaign finance out of the jurisprudential framework for election law cases. (12) Scholars have sparred over whether this situation should be changed and, if so, what campaign finance doctrine should look like. (13) At least two authors have directly advocated for using some form of balancing analysis in campaign finance challenges, though neither proposes using the Burdick test. (14) By explicitly arguing that the Court should fold campaign finance law into the Burdick test, this Comment adds a different perspective to a growing literature debating whether and how to unify the domains of election law. It also provides a new way to examine Williams-Yulee itself. As Williams-Yulee is a relatively new decision, it has not yet generated substantial academic scholarship. Several early commentators lamented the Courts approach to strict scrutiny analysis, but many of them simply argued that the Court should have decided the case the other way. (15) This Comment, by contrast, situates Williams-Yulee in a broader framework, reexamining the divide between the campaign finance and election law doctrines. …

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