The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 39 states, judges are popularly elected (or at least voters must decide whether to retain them). This means that judicial candidates—especially ones who aren't incumbents—have to campaign for office, and those campaigns cost money. Campaigns thus have to raise that money, in contributions from the public.
This raises an obvious danger: Judges may well be influenced to rule in favor of those lawyers or litigants who contributed to their campaigns. Even if the judges are trying hard to be honest, and to ignore who helped them and who didn't, thinking better of your political friends is human nature, and hard to avoid. Such favoritism is even more harmful for judges, who are supposed to be impartial, than for elected officials. And the possibility of such favoritism undermines "public confidence in the fairness and integrity of the nation's elected judges" (to quote today's Court decision). Nor does capping the size of contributions (as states may do for all candidates, legislative, executive, or judicial) solve the problem.
This is often given as a reason for legislative appointment coupled with life tenure, as in the federal system. But most states have rejected the federal model, so the question is what can be done to diminish this risk of influence (and the perception of influence) given the reality of judicial elections.
Part of Florida's answer, which the Supreme Court just upheld today in Williams-Yulee v. Florida, was a ban on personally signed solicitations: (1) Judicial candidates may not "personally solicit campaign funds"—whether in person or by mass mailing—"or solicit attorneys for publicly stated support." (2) Judicial candidates may, however, establish campaign committees that will solicit such funding and endorsements.
Such a ban, of course, is modest in scope: It leaves candidates free to say nearly anything they want to say about why they should be elected (unlike the much greater restriction on judicial candidate speech struck down in Republican Party v. White (2000)); indeed, candidates are free to raise money, so long as they have their campaign committee members sign the solicitations.
But it also seems likely to have only modest (if any) benefit. What really is the practical difference, when it comes to the government's interest in promoting public confidence in judicial fairness, between a mass mailing signed "Lanell Williams-Yulee" and a mass mailing signed "Committee to Elect Lanell Williams-Yulee"? If the candidate is elected, she will be just as likely (or unlikely) to remember who supported her, regardless of how the solicitation was signed. Recipients of such solicitations are just as likely to worry about such favoritism.
In-person solicitation by the candidate might be different from in-person solicitation by committee members (when the candidate isn't present). Candidates might remember (again, whether they want to or not) people's reactions, whether those reactions are, "Of course! I'll send a check right away," "Let me think about it," or "I'd rather not." The people being solicited might therefore feel pressured to say "Of course," and then to make good on what they said. And members of the public might worry that the contributors are therefore getting special treatment, more special than if their checks had come in without this person-to-person interaction. But it's hard for me to see how this logic would distinguish mass mailings signed by the candidate from mass mailings signed by the committee.
In any event, this is the question that split the Court 5-4 (with Chief Justice Roberts and the four more liberal Justices voting to uphold the ban, and the four remaining conservative Justices voting to strike it down).
Here is how the majority reasoned:
1. The Florida rule is a content-based restriction on speech, and it doesn't fall within any existing First Amendment exceptions. A request for a contribution to a political or charitable cause is speech, and is often intertwined with the reasons for the request, which tend to be commentary on political, legal, or social matters. A restriction on such requests is therefore subject to "strict scrutiny": it must be "narrowly tailored" to a "compelling government interest." (Justice Ginsburg didn't agree with this particular conclusion, at least as to solicitations in judicial campaigns, but eight Justices did take this view.)
2. This is the very rare case in which a content-based speech restriction indeed passes strict scrutiny. (The only other majority opinion upholding a content-based speech restriction under strict scrutiny was Holder v. Humanitarian Law Project, which upheld a restriction on speech coordinated with foreign terrorist organizations; the only plurality opinion reaching such a result was Burson v. Freeman, which upheld a restriction on political speech very near polling places.)
3. The government interest in "public confidence in the fairness and integrity of the nation's elected judges" is a compelling interest.
4. The law is a modest restriction on speech, and one that fits the interest well.
a. The law is not improperly overinclusive with respect to the interest: Florida may reasonably conclude that all appeals by judges for money, whether or not in person, and whether or not addressed to lawyers or potential litigants, "inherently create an appearance of impropriety that may cause the public to lose confidence in the integrity of the judiciary," at least to some degree. And any proposed narrowing of the law would be "unworkable":
Even under her theory of the case, a mass mailing would create an appearance of impropriety if addressed to a list of all lawyers and litigants with pending cases. So would a speech soliciting contributions from the 100 most frequently appearing attorneys in the jurisdiction. Yulee says she might accept a ban on one-to-one solicitation, but is the public impression really any different if a judicial candidate tries to buttonhole not one prospective donor but two at a time? Ten? Yulee also agrees that in person solicitation creates a problem. But would the public's concern recede if the request for money came in a phone call or a text message?
We decline to wade into this swamp. The First Amendment requires that Canon 7C(1) be narrowly tailored, not that it be "perfectly tailored." The impossibility of perfect tailoring is especially apparent when the State's compelling interest is as intangible as public confidence in the integrity of the judiciary.
b. Relatedly, there are no less restrictive but pretty much equally effective means of serving the interest: For instance, while "Yulee contends that Florida can accomplish its compelling interest through the less restrictive means of recusal rules,"
A rule requiring judges to recuse themselves from every case in which a lawyer or litigant made a campaign contribution would disable many jurisdictions. And a flood of postelection recusal motions could "erode public confidence in judicial impartiality" and thereby exacerbate the very appearance problem the State is trying to solve. Moreover, the rule that Yulee envisions could create a perverse incentive for litigants to make campaign contributions to judges solely as a means to trigger their later recusal—a form of peremptory strike against a judge that would enable transparent forum shopping.
c. And the law is not underinclusive in serving the interest—it can't be faulted on the grounds that it improperly discriminates among speech that equally implicates public confidence in the judiciary (e.g., speech signed by the candidate and speech signed by the committee):
It is always somewhat counterintuitive to argue that a law violates the First Amendment by abridging too little speech. We have recognized, however, that underinclusiveness can raise "doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint." In a textbook illustration of that principle, we invalidated a city's ban on ritual animal sacrifices because the city failed to regulate vast swaths of conduct that similarly diminished its asserted interests in public health and animal welfare. Church of Lukumi Babalu Aye, Inc. v. Hialeah.
Underinclusiveness can also reveal that a law does not actually advance a compelling interest. For example, a State's decision to prohibit newspapers, but not electronic media, from releasing the names of juvenile defendants suggested that the law did not advance its stated purpose of protecting youth privacy. Smith v. Daily Mail Publishing Co..
Although a law's underinclusivity raises a red flag, the First Amendment imposes no freestanding "underinclusiveness limitation." A State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns. We have accordingly upheld laws—even under strict scrutiny—that conceivably could have restricted even greater amounts of speech in service of their stated interests. Burson v. Freeman; see McConnell v. FEC; Metromedia, Inc. v. San Diego (plurality opinion); Buckley v. Valeo.
Viewed in light of these principles, Canon 7C(1) raises no fatal underinclusivity concerns. The solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: personal requests for money by judges and judicial candidates. The Canon applies evenhandedly to all judges and judicial candidates, regardless of their viewpoint or chosen means of solicitation. And unlike some laws that we have found impermissibly underinclusive, Canon 7C(1) is not riddled with exceptions….
Florida, along with most other States, has reasonably concluded that solicitation by the candidate personally creates a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee. The identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest. When the judicial candidate himself asks for money, the stakes are higher for all involved. The candidate has personally invested his time and effort in the fundraising appeal; he has placed his name and reputation behind the request.
The solicited individual knows that, and also knows that the solicitor might be in a position to singlehandedly make decisions of great weight: The same person who signed the fundraising letter might one day sign the judgment. This dynamic inevitably creates pressure for the recipient to comply, and it does so in a way that solicitation by a third party does not. Just as inevitably, the personal involvement of the candidate in the solicitation creates the public appearance that the candidate will remember who says yes, and who says no.
In short, personal solicitation by judicial candidates implicates a different problem than solicitation by campaign committees. However similar the two solicitations may be in substance, a State may conclude that they present markedly different appearances to the public. Florida's choice to allow solicitation by campaign committees does not undermine its decision to ban solicitation by judges.
Likewise, allowing judicial candidates to write thank you notes to campaign donors does not detract from the State's interest in preserving public confidence in the integrity of the judiciary. Yulee argues that permitting thank you notes heightens the likelihood of actual bias by ensuring that judicial candidates know who supported their campaigns, and ensuring that the supporter knows that the candidate knows. Maybe so. But the State's compelling interest is implicated most directly by the candidate's personal solicitation itself. A failure to ban thank you notes for contributions not solicited by the candidate does not undercut the Bar's rationale.
In addition, the State has a good reason for allowing candidates to write thank you notes and raise money through committees. These accommodations reflect Florida's effort to respect the First Amendment interests of candidates and their contributors—to resolve the "fundamental tension between the ideal character of the judicial office and the real world of electoral politics." They belie the principal dissent's suggestion that Canon 7C(1) reflects general "hostility toward judicial campaigning" and has "nothing to do with the appearances created by judges' asking for money." Nothing?
Justice Scalia, joined by Justice Thomas and largely agreed with by Justices Kennedy and Alito, dissents, arguing that the Court isn't faithfully applying strict scrutiny. He argues that
[B]anning candidates from asking for money personally "favors some candidates over others—incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise any money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders."
And beyond that, he argues, the restriction on personally signed solicitations poorly fits the government interest. (Justice Alito calls it "about as narrowly tailored as a burlap bag.")
The Court at first suggests that "judicial integrity" involves the "ability to administer justice without fear or favor." … [And w]hen the Court explains how solicitation undermines confidence in judicial integrity, integrity … [is defined to involve] independence from any "'possible temptation'" that "'might lead'" the judge, "even unknowingly," to favor one party.
[But w]hen the Court turns to distinguishing in-person solicitation from solicitation by proxy, the any-possible-temptation standard no longer helps and thus drops out. The critical factors instead become the "pressure" a listener feels during a solicitation and the "appearance that the candidate will remember who says yes, and who says no." But when it comes time to explain Florida's decision to allow candidates to write thank-you notes, the "appearance that the candidate … remember[s] who says yes" gets nary a mention. And when the Court confronts Florida's decision to prohibit mass-mailed solicitations, concern about pressure fades away….
The Court announces, on the basis of its "intuiti[on]," that allowing personal solicitations will make litigants worry that "'judges' decisions may be motivated by the desire to repay campaign contributions.'" But this case is not about whether Yulee has the right to receive campaign contributions. It is about whether she has the right to ask for campaign contributions that Florida's statutory law already allows her to receive. Florida bears the burden of showing that banning requests for lawful contributions will improve public confidence in judges—not just a little bit, but significantly, because "the Government does not have a compelling interest in each marginal percentage point by which its goals are advanced."
Neither the Court nor the State identifies the slightest evidence that banning requests for contributions will substantially improve public trust in judges…. Many States allow judicial candidates to ask for contributions even today, but nobody suggests that public confidence in judges fares worse in these jurisdictions than elsewhere…. In the final analysis, Florida comes nowhere near making the convincing demonstration required by our cases that the speech restriction in this case substantially advances its objective.
The dissent also argues that the law is indeed overinclusive, because it applies even to solicitations from people who are highly unlikely to appear before a judge ("an old friend, a cousin, or even [the candidate's] parents"), and because it applies to "mass-mailed letters, flyers posted on telephone poles, speeches to large gatherings, and Web sites addressed to the general public," which "do not share the features that lead the Court to pronounce personal solicitations a menace to public confidence in the judiciary."
And the dissent argues that the law is indeed unconstitutionally underinclusive:
Among 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.
Applying this principle, we invalidated a law that prohibited picketing dwellings but made an exception for picketing about labor issues; the State could not show that labor picketing harmed its asserted interest in residential privacy any less than other kinds of picketing. Carey v. Brown. In another case, we set aside a ban on showing movies containing nudity in drive-in theaters, because the government did not demonstrate that movies with nude scenes would distract passing drivers any more than, say, movies with violent scenes. Erznoznik v. Jacksonville.
The Court's decision disregards these principles. The Court tells us that "all personal solicitations by judicial candidates create a public appearance that undermines confidence in the integrity of the judiciary." But Canon 7C(1) does not restrict all personal solicitations; it restricts only personal solicitations related to campaigns. The part of the Canon challenged here prohibits personal pleas for "campaign funds," and the Canon elsewhere prohibits personal appeals to attorneys for "publicly stated support."
So although Canon 7C(1) prevents Yulee from asking a lawyer for a few dollars to help her buy campaign pamphlets, it does not prevent her asking the same lawyer for a personal loan, access to his law firm's luxury suite at the local football stadium, or even a donation to help her fight the Florida Bar's charges…. [Footnote: … The Supreme Court of Florida has adopted various rules restricting sitting judges' solicitation and acceptance of favors, but these rules do not bind challengers like Yulee.]
Fumbling around for a fig-leaf, the Court says that "the First Amendment imposes no freestanding 'underinclusiveness limitation.'" This analysis elides the distinction between selectivity on the basis of content and selectivity on other grounds. Because the First Amendment does not prohibit underinclusiveness as such, lawmakers may target a problem only at certain times or in certain places. Because the First Amendment does prohibit content discrimination as such, lawmakers may not target a problem only in certain messages. Explaining this distinction, we have said that the First Amendment would allow banning obscenity "only in certain media or markets" but would preclude banning "only that obscenity which includes offensive political messages." R.A.V. v. St. Paul.
This case involves selectivity on the basis of content. The Florida Supreme Court has decided to eliminate the appearances associated with "personal appeals for money," when the appeals seek money for a campaign but not when the appeals seek money for other purposes. That distinction violates the First Amendment.
Even on the Court's own terms, Canon 7C(1) cannot stand. The Court concedes that "underinclusiveness can raise 'doubts about whether the government is in fact pursuing the interest it invokes.'" 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. How else to explain the Florida Supreme Court's decision to ban all personal appeals for campaign funds (even when the solicitee could never appear before the candidate), but to tolerate appeals for other kinds of funds (even when the solicitee will surely appear before the candidate)? It should come as no surprise that the ABA, whose model rules the Florida Supreme Court followed when framing Canon 7C(1), opposes judicial elections—preferring instead a system in which (surprise!) a committee of lawyers proposes candidates from among whom the Governor must make his selection.
Finally, the dissent closes thus:
The judges of this Court, like the judges of the Supreme Court of Florida who promulgated Canon 7C(1), evidently consider the preservation of public respect for the courts a policy objective of the highest order. So it is—but so too are preventing animal torture, protecting the innocence of children, and honoring valiant soldiers. The Court did not relax the Constitution's guarantee of freedom of speech when legislatures pursued those goals; it should not relax the guarantee when the Supreme Court of Florida pursues this one. The First Amendment is not abridged for the benefit of the Brotherhood of the Robe.
On balance, I'm inclined to agree with the dissent: for the reasons I outlined at the outset, the law is not narrowly enough tailored to the government interest. And the rather lax application of the no-overinclusiveness and no-underinclusiveness prongs of the "narrow tailoring" test risks undermining the force of the strict scrutiny as to other content-based speech restrictions as well.