- Supreme Court: States may Prohibit Judicial Candidates from Personally Soliciting Campaign Contributions
- November 4, 2015 | Author: William C. Boak
- Law Firm: Rhoads & Sinon LLP - Harrisburg Office
- When Pennsylvania voters across the Commonwealth head to the polls in November, one of the most closely-watched races will be for three positions on the Pennsylvania Supreme Court. Six candidates - three Republicans and three Democrats - are competing in what is likely to be the most expensive Supreme Court race in history. Indeed, according to their campaign finance reports filed with the Department of State, the six candidates received a combined $10.3 million through October 19, 2015, and spent nearly three-quarters of that amount over the same period. Look for these candidates to continue replenishing and spending their war chests in the days before the election.
Modern political campaigns are expensive, and judicial campaigns are no different. Raising the funds necessary to run an effective statewide campaign requires time and effort. But judicial candidates are restricted in what they may personally do with respect to fundraising. In this regard, Rule 4.1(A)(7) of the Code of Judicial Conduct provides that a judge or judicial candidate “shall not . . . personally solicit or accept campaign contributions other than through a campaign committee authorized by Rule 4.4.” Rule 4.4, in turn, allows a judicial candidate to “establish a campaign committee to manage and conduct a campaign for the candidate,” including soliciting and accepting campaign contributions.
By prohibiting a candidate from personally soliciting contributions, Rule 4.1(A)(7) operates as a restriction on the candidate’s speech. The First Amendment to the U.S. Constitution, however, provides that Congress “shall make no law . . . abridging the freedom of speech,” and the Fourteenth Amendment applies this limitation to the States. Is the restriction on personal solicitation permissible under the First Amendment? In a decision this Spring in Williams-Yulee v. Florida Bar, the United States Supreme Court ruled 5-to-4 that a similar restriction in Florida did not violate the First Amendment.
Like Pennsylvania, Florida is one of 39 states in which voters elect trial judges or appellate judges. According to the American Bar Association, 30 of the 39 states (including Pennsylvania and Florida) have adopted prohibitions on personal solicitation of campaign funds. The Florida Supreme Court adopted Canon 7C(1) of its Code of Judicial Conduct, which, in relevant part, provides: “‘A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds . . ., but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign . . . .’” Florida statutes impose additional restrictions on the amount that a contributor may donate to a judicial candidate per election. The Florida Judicial Ethics Advisory Committee has interpreted Canon 7 to permit judicial candidates to learn the identity of, and to send thank you notes to, campaign contributors.
In 2009, Lanell Williams-Yulee (“Yulee”) decided to run for county court judge. She drafted a letter that announced her candidacy, described her experience and reasons for running, and then stated:
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. I ask for your support [i]n meeting the primary election fund raiser goals. Thank you in advance for your support.
Yulee signed the letter, which she mailed to local voters and posted on her campaign website.
Unfortunately for Yulee, she lost the primary election. To make matters worse, the Florida Bar filed a complaint against her alleging that she violated the rule of professional conduct that requires attorneys running for judicial office to comply with the relevant provisions of the Code of Judicial Conduct, including Canon 7C(1). Yulee admitted that she signed and sent the letter, but argued that she could not be disciplined because the First Amendment protected her right to solicit campaign contributions. The Florida Supreme Court adopted a referee’s recommendation that Yulee be found guilty, publicly reprimanded, and ordered to pay costs. The court also rejected Yulee’s constitutional challenge to Canon 7C(1).
The Majority Opinion
In an opinion by Chief Justice John Roberts, the U.S. Supreme Court affirmed the judgment of the Florida Supreme Court. As a threshold issue, all parties agreed that Canon 7C(1) restricted Yulee’s speech based on its content, but they disagreed about the level of scrutiny. The Court had previously applied “exacting scrutiny” to restrictions on charitable solicitations, explaining that “noncommercial solicitation ‘is characteristically intertwined with informative and perhaps persuasive speech.’” Applying a lower level of scrutiny would undermine “‘the exercise of rights so vital to the maintenance of democratic institutions.’” Those principles applied even more forcefully in this case, Chief Justice Roberts stated. In her letter, Yulee preceded her request for funds by stating her qualifications for the bench and her vision for the courts, and the purpose of the solicitation was to “get [her] message out to the public.” “As we have long recognized,” Chief Justice Roberts observed, “speech about public issues and the qualifications of candidates for elected office commands the highest level of First Amendment protection.” Accordingly, “[a] State may restrict the speech of a judicial candidate only if the restriction is narrowly tailored to serve a compelling interest.”
Turning to the merits of Yulee’s First Amendment challenge to Canon 7C(1), Chief Justice Roberts noted that “‘it is the rare case’” in which a speech restriction is upheld as narrowly tailored to serve a compelling state interest. But such cases do arise, and this was one of those rare cases.
First, the Florida Supreme Court adopted Canon 7C(1) to serve a compelling state interest: “‘protecting the integrity of the judiciary’” and “‘maintaining the public’s confidence in an impartial judiciary.’” A judge must administer justice equally to all “without fear or favor.” Thus, Florida and most states have concluded that the public may lack confidence in a judge’s ability to do so “if he comes to office by asking for favors.” That interest is supported by the Court’s precedents, which have recognized that public confidence in the judiciary is a “‘vital state interest’” that stems from the judiciary’s place in government. Unlike the executive and legislative branches, the judiciary controls neither the “‘sword’” nor the “‘purse’”. Rather, its authority “depends in large measure on the public’s willingness to respect and follow its decisions.” The public’s perception of judicial integrity, therefore, is of vital importance.
The Court conceded that “[t]he vast majority of elected judges in States that allow personal solicitation serve with fairness and honor.” But even if judges could refrain from favoring their contributors, the mere possibility that judges’ decisions could be motivated by a desire to repay donors is enough to undermine public confidence in the judiciary. Thus, Florida’s interest is compelling.
Second, the Court rejected Yulee’s argument that the underinclusiveness of Canon 7C(1) (i.e., it regulated too little speech) undermined Florida’s position. Yulee argued that Canon 7C(1) allows judicial candidates’ campaign committees to solicit money, which reduces public confidence in judicial integrity as much as a candidate’s personal solicitation, and allows judicial candidates to write thank-you notes, which ensures that candidates know who their contributors are. The Court was not persuaded. To be sure, underinclusiveness can cast doubt on whether the government is really pursuing its asserted interest or may show that a law fails to actually advance a compelling interest. But “the First Amendment imposes no freestanding ‘underinclusiveness limitation.’” On the contrary, “[a] State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns.”
Here, the prohibition on candidate solicitation is directed at the conduct most likely to undermine confidence in judicial integrity - personal requests for contributions by judges and judicial candidates - and it applies to all judges and judicial candidates regardless of viewpoint or means of solicitation and contains no exceptions. While Canon 7C(1) allows the campaign committee to solicit contributions, Florida and other states have reasonably concluded that “[t]he identity of the solicitor matters.” The stakes are higher when the candidate himself or herself asks for money; “[h]owever similar the two solicitations may be in substance, a State may conclude that they present markedly different appearances to the public.” The Court also disagreed with Yulee’s contention that the failure to ban thank you notes to contributors detracted from Florida’s compelling interest. It may be true that writing thank you notes ensures that candidates know who their supporters are, and that the supporters know that the candidates know. But the State’s compelling interest in preserving public confidence in judicial integrity is implicated most directly by personal solicitation. Moreover, by allowing judicial candidates to raise funds through committees and to write thank you notes, Florida has sought “to resolve the ‘fundamental tension between the ideal character of the judicial office and the real world of electoral politics.’”
Third, the Court concluded that Canon 7C(1) was narrowly tailored to serve Florida’s compelling interest. Judicial candidates can discuss any issue at any time with any person; make speeches, write letters, and post signs; and promote their candidacies through various media. And while they cannot say, “Please give me money,” they can “direct their campaign committees to do so.” In fact, Yulee conceded that Canon 7C(1) could be validly applied to prohibit judges from soliciting funds from attorneys and parties appearing before them, and might even be applied to certain “direct one-to-one solicitation” and “in person” solicitation. But she argued that Canon 7C(1) could not be applied to her forms of solicitation - mass mailing and online posting - because the public will not lose confidence in judicial integrity based on solicitation to a wide audience. The Court disagreed. The State’s interest in preserving public confidence in judicial integrity, though implicated to varying degrees depending on the context, “remains whenever the public perceives the judge personally asking for money.” Further, the Court explained, “the lines Yulee asks us to draw [around mass mailings, direct one-to-one solicitation, and in person solicitation] are unworkable.”
Finally, the Court rejected Yulee’s argument that Florida could serve its compelling interest through less restrictive means of contribution limits and recusal rules. Florida already applied limits to contributions in judicial elections. A State could conclude that the threat to public confidence posed by personal solicitation is distinct from the threat posed by the amount of money that a candidate seeks. And even if Florida decreased such limits, the appearance of judges improperly favoring campaign donors from whom they personally solicited would remain. As for a rule requiring recusal in every case in which the attorney or litigant made a contribution, the Court believed it “would disable many jurisdictions.” In fact, such a rule would be counterproductive, Chief Justice Roberts wrote, because a wave of postelection recusal motions could itself erode public confidence in judicial integrity and impartiality. It might also create the “perverse incentive” for litigants to make campaign contributions solely to trigger a later recusal. 
The Principal Dissent
Four justices dissented, producing three dissenting opinions. Most noteworthy was the lively dissent from Justice Scalia that was joined by Justice Thomas. In his view, the case was straightforward: “Faithful application of our precedents would have made short work of this wildly disproportionate restriction upon speech.” In this regard, the first axiom of the First Amendment is that, in general, a State has no authority to prohibit speech based on its content. “One need not equate judges with politicians to see that this principle does not grow weaker merely because the censored speech is a judicial candidate's request for a campaign contribution.” Speech enjoys full protection unless a longstanding tradition justifies its restriction, and Justice Scalia found no such tradition either regulating judicial speech in general or solicitations in particular. “One likewise need not equate judges with politicians to see that the electoral setting calls for all the more vigilance in ensuring observance of the First Amendment.” A candidate who asks for money often discusses his qualifications and views on issues, expression that is at the heart of First Amendment protection. Thus, Canon 7C(1) presumptively violates the First Amendment because it bans “fully protected speech on the basis of content” and may be upheld only if it survives strict scrutiny. Although Justice Scalia accepted that States have a compelling interest in regulating judicial elections differently than political elections because judges must be impartial, and accepted for argument’s sake the interest in judges being seen as impartial, he found that Canon 7C(1) was not narrowly tailored to achieve these interests.
Justice Scalia then launched a four-prong attack at how the majority applied strict scrutiny, which he criticized as “applying the appearance of strict scrutiny.” “The first sign that mischief is afoot comes when the Court describes Florida's compelling interest.” In order for a court to decide whether the State’s interest is compelling, the State must describe its interest with “precision.” Rather than demand precision, Justice Scalia argued, “the Court today relies on Florida's invocation of an ill-defined interest in ‘public confidence in judicial integrity.’” In that regard, the Court’s description of judicial integrity varied from the “ability to administer justice without fear or favor,” to “sound[ing] like saintliness,” to concern about “pressure” on a listener during a solicitation and the “appearance that the candidate will remember who says yes, and who says no.” In fact, by “molding” the interest in the perception of judicial integrity “into an interest in the perception that judges do not solicit,” the Court could state that banning all personal solicitations is narrowly tailored to serve that interest. “This is not strict scrutiny; it is sleight of hand.”
Second, Justice Scalia argued that the State must not only articulate a vital public interest, but it must also “meet a difficult burden of demonstrating that the speech restriction substantially advances the claimed objective.” Thus, Florida must show that “banning requests for lawful contributions will improve public confidence in judges—not just a little bit, but significantly.” Yet neither the State nor the Court identified any evidence that such a ban substantially improves public confidence in the judiciary. Judicial elections have been around for over two centuries, but rules against personal solicitations arose only in 1972. “The peaceful coexistence of judicial elections and personal solicitations for most of our history calls into doubt any claim that allowing personal solicitations would imperil public faith in judges.” Furthermore, several States allow judicial candidates to ask for contributions, yet no one argued that public confidence in judges is worse in these States than elsewhere. As such, Florida failed to demonstrate that its solicitation ban substantially advances its interest.
Third, Justice Scalia argued that Florida failed to show that the solicitation ban was narrowly tailored to serve its objective. Although Florida may be concerned that public confidence is eroded by the perception that candidates who solicit are “selling justice to lawyers and litigants,” Canon 7C(1) “prohibits candidates from asking for money from anybody—even from someone who is neither lawyer nor litigant, even from someone who (because of recusal rules) cannot possibly appear before the candidate as lawyer or litigant.” Moreover, Canon 7C(1) prohibits candidates from soliciting contributions through messages that do not target a particular listener, such as mass mailings and websites accessible to the general public. “Messages like these do not share the features that lead the Court to pronounce personal solicitations a menace to public confidence in the judiciary.”
Finally, Justice Scalia observed that, “[a]mong its other functions, the First Amendment is a kind of Equal Protection Clause for ideas. The state ordinarily may not regulate one message because it harms a government interest yet refuse to regulate other messages that impair the interest in a comparable way.” Although Florida concluded that “‘all personal solicitations by judicial candidates create a public appearance that undermines confidence in the integrity of the judiciary,’” Canon 7C(1) does not ban all personal solicitations of money by judicial candidates, only personal solicitations of campaign contributions. However, the distinction between personal appeals for money for a campaign and personal appeals for money for other purposes, which arguably can erode public confidence, violates the First Amendment because it is based on content. In the end, Justice Scalia concluded, Canon 7C(1)’s underinclusiveness casts doubt on whether Florida was really pursuing the interest it invoked: “Canon 7C(1)'s scope suggests that it has nothing to do with the appearances created by judges’ asking for money, and everything to do with hostility toward judicial campaigning.” Such hostility entitles Florida citizens to amend their constitution to replace judicial elections with merit selection; it does not entitle the Florida Supreme Court to adopt a rule abridging judicial candidates’ First Amendment rights.
In Williams-Yulee, the United States Supreme Court held that Canon 7C(1) did not violate the First Amendment because the regulation was narrowly tailored to serve a compelling state interest. Both the Florida Supreme Court and the majority were correct that a state has a compelling interest in preserving public confidence in the integrity and impartiality of the judiciary. A judge must be impartial and exhibit no bias for or against any party or attorney who appears before him or her. The majority also makes a good point that the judiciary’s authority “depends in large measure on the public’s willingness to respect and follow its decisions.” As such, even the appearance of impropriety or partiality can undermine public confidence.
But whether a categorical ban on personal solicitations of contributions that a judicial candidate is lawfully permitted to receive, as opposed to more targeted restrictions, is narrowly tailored to serve that interest is another matter. In that respect, Judge Scalia offers a fair critique of the majority’s application of the strict scrutiny standard (or, in his word, the “appearance” thereof). Soliciting a contribution from a family member or close friend, mass-mailing a letter, or posting a message to the campaign website would appear unlikely to diminish public confidence or “share the features that lead the Court to pronounce personal solicitations a menace to public confidence in the judiciary.” Further, as both Chief Justice Roberts and Justice Scalia recognized, a candidate’s request for a contribution is often “‘characteristically intertwined’” with a discussion of the candidate’s qualifications and views on public issues - speech entitled to the “highest level” of, and at the “heart” of, First Amendment protections. Finally, Justice Scalia raises an interesting question: Does banning the personal solicitation of campaign contributions actually improve public confidence in the judiciary? Some states permit judicial candidates to personally solicit contributions, and no one suggested public confidence in the judiciary is worse in those states.
Notwithstanding the persuasive (and entertaining) opinion of Justice Scalia, the majority’s view carried the day. States may prohibit judicial candidates from personally soliciting campaign contributions. In our Commonwealth, the Pennsylvania Supreme Court adopted its own ban on such solicitations, currently Rule 4.1(A)(7), which, like Canon 7C(1), allows a candidate to establish a campaign committee under Rule 4.4 to solicit and accept contributions. This does not mean, however, that a judicial candidate may have no involvement in the campaign’s fundraising activity. A candidate may attend and speak on his or her behalf at a fundraiser. And nothing in the Code prohibits judicial candidates from sending thank you notes to contributors.
More importantly, Rule 4.4 imposes an obligation on judicial candidates to “take reasonable steps to cause his or her campaign committee to comply with applicable provisions of this Code and other applicable law.” Indeed, “[c]andidates are responsible for compliance with the requirements of election law and other applicable law, and for the activities of their campaign committees.” To fulfill his or her responsibility, a judicial candidate should consider the following:
- Become familiar with the Pennsylvania Election Code, especially the sections on campaign finance, and with Canon 4 of the Code of Judicial Conduct, which governs political and campaign activity of judges and judicial candidates.
- Establish a campaign committee of responsible and experienced individuals in whom you have confidence can effectively run all aspects of the campaign, including fundraising.
- Appoint a diligent and dependable person as campaign treasurer, such as an accountant or an attorney, who has campaign finance experience and knows how to file complete and timely campaign finance reports.
- Review each campaign finance report before it is submitted. If you have any questions about the report, or anything in the report is unclear, ask the treasurer for an explanation. Not only must the candidate sign an affidavit that accompanies the committee’s campaign finance report, but, as Rule 4.4 and its comment make clear, the candidate is ultimately responsible for compliance with the requirements of the Code of Judicial Conduct and the campaign finance law.
 Pa. Code of Judicial Conduct R. 4.1(A)(7).
 Pa. Code of Judicial Conduct R. 4.4.
 U.S. Const. amend. I.
 Stromberg v. California, 283 U.S. 359, 368 (1931).
 135 S. Ct. 1656 (U.S. Apr. 29, 2015).
 Id. at 1662.
 Id. at 1663 (citing Brief for American Bar Association as Amicus Curiae at 4, Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015) (No. 13-1499).
 Id. (quoting Fla. Code of Judicial Conduct Canon 7C(1) (2014)).
 Id. (citing Fla. Stat. § 106.08(1)(a) (2014)).
 Id. (citing Florida Judicial Ethics Advisory Comm., An Aid to Understanding Canon 7, at 51-58 (2014)).
 Id. (quotation omitted).
 Id. at 1663-64.
 Id. at 1664.
 Id. (citing Florida Bar v. Williams-Yulee, 138 So. 3d 379 (Fla. 2014)).
 Id. (citing Williams-Yulee, 138 So. 3d at 384-85, 387).
 Id. (plurality opinion). The part of Chief Justice Roberts’s opinion on the applicable level of scrutiny was joined by only three other justices. See id. at 1661.
 Id. at 1664-65 (quoting Riley v. Nat’l Fed’n of Blind of N.C., Inc., 487 U.S. 781, 796 (1988)).
 Id. at 1665 (quoting Schneider v. State (Town of Irvington), 308 U.S. 147, 161 (1939)).
 Id. (citing Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223 (1989)).
 Id. at 1665-66 (majority opinion) (quoting Burson v. Freeman, 504 U.S. 191, 211 (1992) (plurality opinion)).
 Id. at 1666 (quoting Williams-Yulee, 138 So. 3d at 385).
 Id. (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 889 (2009)).
 Id. (quoting The Federalist No. 78 (A. Hamilton)).
 Id. Moreover, states may regulate judicial elections differently from political elections because politicians and judges assume different roles; the former expected to be responsive to their supporters, the latter expected not to give special consideration to supporters or donors. Id. at 1667.
 Id. (quoting Republican Party of Minn. v. White, 536 U.S. 765, 790 (2002) (O’Connor, J., concurring)).
 Id. at 1668.
 Id. (quoting Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2740 (2011); citing Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 104-05 (1979)).
 Id. (quoting R.A.V. v. St. Paul, 505 U.S. 377, 387 (1992)).
 Id. at 1668-69.
 Id. at 1669.
 Id. (quoting Chisom v. Roemer, 501 U.S. 380, 400 (1991)).
 Id. at 1670.
 Id. at 1671.
 Id. at 1672.
 Id. Moreover, that fact that a State may constitutionally adopt contribution limits to prevent quid pro quo corruption and its appearance in political elections does not prevent a State from serving its compelling interests through other means. Id. “[A] State has compelling interests in regulating judicial elections that extend beyond its interests in regulating political elections, because judges are not politicians.” Id.
 Id. at 1671.
 Id. at 1671-72.
 Id. at 1672.
 See id. at 1675-82 (Scalia, J., dissenting); id. at 1682-85 (Kennedy, J., dissenting); id. at 1685-86 (Alito, J., dissenting).
 Id. at 1676 (Scalia, J., dissenting); see also id. at 1677.
 Id. at 1676.
 Id. at 1676-77.
 Id. at 1677 (emphasis added).
 Id. (quotation omitted).
 Id. at 1678.
 Id. at 1678-79.
 Id. at 1679.
 Id. at 1680.
 Id. (quoting id. at 1671 (majority opinion)).
 Id. at 1680-81 (Scalia, J., dissenting).
 Id. at 1681.
 Id. at 1682.
 Id. at 1666 (majority opinion).
 Id. at 1677 (Scalia, J., dissenting).
 Id. at 1679.
 Id. at 1665 (plurality opinion) (quoting Riley, 487 U.S. at 796); id. (citing Eu, 489 U.S. at 223); id. at 1676 (Scalia, J., dissenting).
 See Pa. Code of Judicial Conduct R. 4.2(B)(2) (a candidate may “speak on behalf of his or her candidacy through any medium, including but not limited to advertisements, websites, or other campaign literature”).
 Pa. Code of Judicial Conduct R. 4.4(A).
 Pa. Code of Judicial Conduct R. 4.4 cmt. 2.
 See 25 Pa. Stat. Ann. §§ 2601-3591.
 See id. §§ 3241-3260b.
 See Pa. Code of Judicial Conduct Canon 4 (rules 4.1 to 4.5). Canon 4 states: “A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.” Id.
 See 25 Pa. Stat. Ann. § 3249(a) (“[A]ny report filed by [the candidate’s campaign] committee . . . must be accompanied by an affidavit from that candidate which provides that, to the best of the candidate's knowledge, the political committee has not violated any provision of this act.”).