May Judicial Candidates Be Prevented from Seeking Campaign Funds? | A Question of Ethics

By Davidson, C Simon | Roll Call, June 2, 2015 | Go to article overview

May Judicial Candidates Be Prevented from Seeking Campaign Funds? | A Question of Ethics


Davidson, C Simon, Roll Call


Q. I just read that in some states, people running for judicial positions may not seek contributions to their campaigns. This struck me as nonsensical, but the article said that the U.S. Supreme Court recently upheld the prohibition. Is it really the case that states prohibit judicial candidates from seeking campaign contributions? And, why would the Supreme Court allow these prohibitions?

A. You are campaigning for office, but you cannot seek money for your campaign. That would put a bit of a damper on things for our nation's politicians, wouldn't it?

Yet, in many states, this is how things are for judicial candidates. While federal judges obtain their seats by appointment, in 39 states judges are elected at the polls. Many of these states prohibit judicial candidates from personally soliciting funds for their campaigns. Why would they do this? Let's look at the recent Supreme Court case you mention as an example.

The case involved a challenge to Florida ban's on judicial candidates personally soliciting contributions to their campaigns. In 2009, Lanell Williams-Yulee violated the ban by sending voters a letter announcing her candidacy for a county judge position and asking for contributions to her campaign. When the Florida Bar charged her with a violation, Williams-Yulee argued that as a content-based restriction on speech, the ban violates the First Amendment. The Florida Supreme Court disagreed and Williams-Yulee, who lost her election, was publicly reprimanded and fined.

She appealed to the U.S. Supreme Court which, in a 5-4 decision, rejected her challenge. Chief Justice John G. Roberts Jr., delivering the plurality opinion of the court, began by acknowledging that "[s]peech about public issues and the qualification of candidates for elected office commands the highest level of First Amendment protection." Therefore, any restriction of speech by a judicial candidate must be "narrowly tailored" to serve what the court deems "a compelling interest." Passing this test is a "demanding task" accomplished only in "the rare case." Yet, the court concluded Florida's ban was just such a case.

What was Florida's compelling interest? Protecting public confidence in judicial integrity.

"Judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity," Roberts wrote. This is reflected in the common law judicial oath itself, which binds judges to "do right to all manner of people ... without fear or favor." Florida had permissibly concluded, Roberts reasoned, "that the public may lack confidence in a judge's ability to administer justice without fear or favor if he comes to office by asking for favors. …

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