Last week, before they convened again at oral argument to mark the start of another term, the justices of the United States Supreme Court selected for review a case that will help further define the murky relationship between state judges and those who seek to shape justice before them. In Williams-Yulee v. The Florida Bar, the Court will decide whether a state judicial canon that requires judicial candidates to seek campaign contributions through a committee, rather than directly from donors, violates that candidate’s first amendment free-speech rights. The case is interesting in its own right. The electioneering judgment employed by this particular judicial candidate was so disconcerting it’s probably a good thing for the law (not to mention the litigants of Florida) that ultimately she lost the election for which she was campaigning. But the timing of the case is interesting, too. It comes to the Court in a season of unprecedented spending on (mid-term) judicial campaigns all across the country—money unleashed upon campaigns, including judicial elections, because of the Court’s Citizens United and McCutcheon decisions.
Having expanded the scope of the first amendment for corporations, having codified a constitutional nexus between speech and money, having altered the political funding dynamics of this nation in countless ways, the Court’s conservatives now have to track back a bit and decide in “small” cases like this whether state officials can throw up any reasonable obstacles to the flow of cash from candidates and the men and women and organizations who want to contribute to them. Are the justices prepared to draw a line between judicial elections and political ones? And if so will the line be drawn here?
This case isn’t about the flow of money. The dispute centers on a branch of the first amendment tree different from the one the justices have focused upon lately with their epic campaign finance rulings. There was no mention of Citizens United or McCutcheon in the briefs and the campaign money will continue to flow into Florida’s judicial campaigns no matter how this case is resolved. The fight here instead is about whether state officials can at least try to make this flow of money seem less unseemly than it is. Thirty-nine states today provide for some sort of judicial elections and nearly every one of them also has adopted a rule that forbids judicial candidates from directly soliciting money.
It is, indeed, hard to imagine a more reasonable restriction on someone who wants to be (or to stay) a judge. Sure, it restricts that candidate’s free speech rights. But every judge, including even the justices in Washington, is required to abide by certain restrictions upon their speech. That’s what many judicial ethics rules are about. This restriction in Florida happens to require judges to take an extra few steps before they can count their campaign cash. Yet four federal appeals circuits (the Sixth, Eighth, Ninth, and Eleventh) have concluded that these restrictions are unconstitutional. Two federal appeals circuits (the Third and Seventh) along with state supreme courts in Arkansas, Florida, and Oregon, have concluded that they fine. It’s a clear conflict.