On the day before the fifth anniversary of Citizens United, the Supreme Court will hear arguments in Williams-Yulee v. The Florida Bar, which asks whether a rule that prohibits candidates for judicial office from personally soliciting campaign funds violates the First Amendment. At its core, the case raises the question as to what measures we will be permitted to take to protect the integrity of our justice system from the influence of big money.
The case arises out of a 2009 judicial election in Hillsborough County, Florida. Lanell Williams-Yulee signed a fundraising letter for her ultimately unsuccessful campaign for a county court judgeship. The Florida Supreme Court fined and publicly reprimanded Williams-Yulee for violating Canon 7C(1) of the Florida Code of Judicial Conduct, which prohibits candidates for judicial offices from personally soliciting campaign funds.
Williams-Yulee challenged the reprimand, arguing that the prohibition infringed on her free speech rights.
Demos, in partnership with several other public interest organizations, filed an amici brief in the matter, countering that Canon 7C(1) protects Florida’s vital interest in maintaining the reality and appearance of judicial impartiality and is narrowly tailored to this end.
As Demos has discussed, both in the brief and earlier posts, there has been a surge in spending related to judicial campaigns, raising concerns about individual and systemic biases. And Canon 7C(1) is a common-sense measure that reduces the risks of corruption and the appearance thereof that might arise from individual solicitations by judicial candidates.
Just last week, the corrupting influences of big-money contributions in judicial elections were brought to the fore. A former state judge from Arkansas pleaded guilty to a federal bribery count after he reduced a jury award against a nursing home from $5.2 million to $1 million after receiving significant campaign contributions from PACs primarily funded by the owner of the nursing home.
Subsequent reporting showed that the same businessman donated more than $100,000 to four members of the seven-member Arkansas Supreme Court, revealing the questionable efficacy of recusals as a means of mitigating the risks of corruption that accompany big-money contributions in judicial campaigns.
The Supreme Court’s money-in-politics cases have generally permitted economic elites to transform their financial resources into political power, an anti-democratic outcome that requires wholesale change.
But the Court has not been totally adrift, appearing to recognize that, unlike elected legislators, members of the judiciary are not permitted to favor their supporters. And, in that vein, the Court should look to its Caperton v. A.T. Massey Coal Co., Inc. precedent, In Caperton, Court held that a state supreme court justice’s failure to recuse himself from a case in which one of the parties donated $3 million to his election campaign violated the Fourteenth Amendment.
Similarly, here the Court should affirm the Florida Supreme Court’s decision and help ensure that judicial candidates’ need for campaign contributions does not impair the integrity of the judiciary.