The legitimacy of these decisions depends on the public’s belief that justice has been done, that cases are decided by a fair and impartial decision-maker who has applied the law to the facts before her. It is this vital interest—judicial integrity—that is at stake in Williams-Yulee v. The Florida Bar, a case heard by the Supreme Court this past Tuesday.
The impartiality of our courts is under siege. Thirty-nine states select judges in elections that are becoming increasingly expensive and politicized. Between 2000 and 2009, contributions in state supreme court races more than doubled. As pressure on judges to raise campaign funds grows, they will continue turning to their most significant contributors—lawyers and lobbyists. It is therefore no surprise that 95 percent of respondents to a national poll believe that contributions influence judicial decision-making—and that nearly half of surveyed state court judges agree.
Florida, like the vast majority of states that elect judges, has implemented a modest, but important, measure to help insulate its judiciary from the pernicious influence of campaign spending. Under Florida’s ethical code, judicial candidates are prohibited from personally asking for campaign contributions. Instead, they are required to conduct all fundraising through a campaign committee. In Williams-Yulee, the Supreme Court will consider the constitutionality of this provision.
The rationale for Florida’s rule is simple. While states are free to choose their judicial selection methods, they are also obliged to protect the integrity of their courts. Florida, recognizing the unique threat posed by personal solicitation, adopted the rule at issue in Williams-Yulee, among others, in 1973 to protect its courts against rampant scandal and corruption.
Personal solicitation creates the impression that justice is for sale. An attorney who is personally solicited by a judge before whom she regularly appears may perceive the request as an offer for courtroom success in exchange for a financial contribution. At the very least, the attorney will likely feel that her decision whether to contribute will affect her treatment in court. This perception, shared by the public at large, threatens confidence in judicial integrity.
Florida’s regulation, while protecting a vital state interest, poses a narrow restriction on speech. Judicial candidates remain able to raise adequate campaign funds through a committee of their choosing. Indeed, Florida’s rule places no limitation on candidates’ ability to discuss their values, qualifications for office, or views on any issue; its only prohibition is on the direct “ask” for money.
Petitioner Lanell Williams-Yulee has been critical of Florida’s line drawing, arguing that the mass mailer she signed should not have been caught in the rule’s sweep. Several justices, however, appeared concerned at oral argument Tuesday about the inherently coercive effect of judicial requests. Justice Sotomayor, relying on her own judicial experience, observed that “[i]t’s very, very, very rare that either by letter or by personal call that I ask a lawyer to do something, whether it’s serve on a committee, help organize something . . . that that lawyer will say no.” Justice Breyer mirrored this sentiment, explaining that “when a judge says, can you please” then “the answer is yes.”
State supreme court justices, who have had the experience of both making requests of lawyers and raising campaign funds, have been particularly sensitive to the threat posed by direct solicitation. Every state supreme court to consider the question has upheld its state’s personal solicitation prohibition, whereas federal appellate courts have split. The resolution to this divide now lies with the Supreme Court.
Kate Berry works for the Fair Courts Project at the Brennan Center for Justice at New York University School of Law.