The Supreme Court’s latest test of whether campaign contribution restrictions violate free-speech rights split the justices into familiar liberal and conservative camps. And skeptical questions from Justice Anthony M. Kennedy, who probably holds the pivotal vote, did not bode well for Florida and 29 other states that forbid judicial candidates from directly soliciting campaign contributions. Such restrictions are needed, the states contend, because judges are not like other politicians. The public expects judges to be impartial, the states argue, and that perception is compromised when candidates directly ask for money. But Barry Richard, representing the Florida Bar Association, received sharp questioning from justices about whether Florida’s regulations are too porous to accomplish those goals. While candidates may not directly solicit contributions, they may organize a committee to ask for money, direct the committee toward potential contributors, see who gave and even send thank-you notes.
Richard contended that the regulations work because Florida is attempting “to cut the direct link that creates the quid pro quo relationship by keeping . . . the judicial candidate from communicating directly with the person that he or she desires to receive the money from.”
“Unless it’s a thank-you note,” Justice Antonin Scalia responded. “I mean, once you say you can send a thank-you note, what you’ve just said is not true.”
Chief Justice John G. Roberts Jr., one of Richard’s toughest questioners, said he appreciated the difficulty Richard faced. Once Florida decided that at least some of its judges should be elected and thus allowed to raise money for campaigns, Roberts said, “you’re under a great burden in trying to figure out how you’re going to fix that without contravening the First Amendment.”