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.