23.12. Role of campaign committees in judicial campaign

Campaign committees are a central aspect of a judicial candidacy.  A judicial candidate cannot “personally solicit or accept campaign contributions” for their election.[1]  Instead, the candidates must establish a campaign committee that is responsible for soliciting and collecting contributions and complying with applicable campaign finance laws.[2]

The rationale for prohibiting judicial candidates from personally soliciting campaign contributions is the desire to maintain the integrity of the judicial system.  In short, think about how it would look if a judicial candidate walked up to someone and said “Will you donate to my campaign?” The person hearing that could feel pressured to donate to the campaign or risk the candidate seeking revenge if they are elected.  On the other hand, the solicitation could also been as a way to ensure a good ruling – by responding yes when the candidate asks for a contribution to the campaign.  The rule avoids this by prohibiting all solicitation by the candidate. 

The potential problem, however, is how broad the prohibition is.  In the example above, where the candidate is personally soliciting funds from the potential donor, the feeling of pressure to give and the public perception that giving could lead to favorable outcomes seems valid.  What about a letter over the judge’s signature, however, is that still a prohibited “personal solicitation” by the candidate?  It is different from the in-person example.  The person receiving it could curse the candidate and throw the letter away or could give to the campaign – either way it is a step removed from in-person solicitation.  Is a prohibition that restricts the right of a judicial candidate to even send out a letter signed by the judge overly broad such that it is so broad that it violates a candidate’s First Amendment right to free speech?  This was issue addressed by the United States Supreme Court in Williams-Yulee v. Florida Bar in 2015.  In Williams-Yulee, the candidate sent out a letter – signed by the candidate which said the following:

An early contribution of $25, $50, $100, $250, or $500, made payable to ‘Lanell Williams-Yulee Campaign for County Judge’, will help rais the initial funds needed to launch the campaign and get out messate out to the public.  I aks for your support in meeting the primary election fund raiser goals.  Thank you in advance for your support.   

The Florida Bar filed a complaint against Williams-Yulee for personally signing the letter (instead of going through her campaign committee).  The Court held that strict scrutiny applied to the restriction on the candidate’s speech rights.  The question then became whether the state could demonstrate a compelling interest for the regulation that is narrowly tailored to to serve that interest.  The compelling interest is easy:  “Simply put, Florida and most other States have concluded that the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to the office by asking for favors.”[3] The interest in maintaining public confidence in the integrity of the judicial system and a particular judge’s fairness in decision-making is a “vital interest.”[4]

The real constitutional argument is over the second prong of the strict scrutiny test:  is the restriction narrowly tailored to meet the legitimate interest?  The first argument is that the restriction is underinclusive.  After all, if the state is concerned about solicitation of funds in a judicial raise, why should it matter that the solicitation occurs by a campaign committee instead of the candidate:  doesn’t committee solicitation raise the same concerns?  In addition, the state admits that it is ethical for the canidate to find out who contributed and to send thank you cards.  Shouldn’t the prohibition be broader if the state is really interested in making ensuring judicial independence/intergrity?  Here is how Chief Justice Roberts, writing for the majority, discussed the distinction between campaign commitees soliciting and the candidate:

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 high 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 decisinos 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.[5]

The Court then distinguished soliciting for funds from subsequently sending a thank you note.  The Court notes that the state’s concern is with the ask and not that the judge ultimately knows (and thanks those) who gave the money.

The more interesting question is whether the absolute restriction on a judge soliciting in any way (even letters) restricts speech more than is necessary to achieve the goal of protecting the integrity of the judiciary.  The Court held that the state had a sufficient interest in restricting all requests by a judicial candidate – and even if the restriction might be overly broad in certain scenarios – the state has a sufficient interest in prohibiting judicial solicitation in all forms.  Chief Justice Roberts, rejecting the need for “perfect tailoring” of the restriction with the interest wrote:

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.  Yulee is of course correct that some personal solicitations raise greater concerns than others.  A judge who passes the hat in the courthouse creates a more serious appearance of impropriety than does a judicial candidate who makes a tasteful plea for support on the radio.  But most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form. … Here, Florida has concluded that all personal solicitations by judicial candidates create a public appearance that undermines confidence in the intergrity of the judiciary; banning all personal solicitations by judicial candidates is narrowly tailored to address that concern.[6] The bottom-line after the Williams-Yulee case is:  (1)  judicial candidates cannot solicit funds for their campaign in any form; (2) only campaign committees can solicit campaign contributions on behalf of the candidate; and (3) the judge may write thank you notes to donors after they have given money to the committee.

[1] ABA Code of Judicial Conduct, Canon 4, Rule 4.1(A)(8).

[2] ABA Code of Judicial Conduct, Canon 4, Rule 4.4.

[3] Williams-Yulee v. Florida Bar, 135 S.Ct. 1656, 1666 (2015).

[4] Williams-Yulee v. Florida Bar, 135 S.Ct. 1656, 1666 (2015).

[5] Williams-Yulee v. Florida Bar, 135 S.Ct. 1656, 1669 (2015).

[6] Williams-Yulee v. Florida Bar, 135 S.Ct. 1656, 1671 (2015).