In a clash between the First Amendment and judicial ethics code, the Supreme Court debated Tuesday whether to free elected judges to personally ask for campaign contributions from voters, including lawyers and others who might one day find themselves in their courtroom.
At issue are laws or ethics rules in 30 states which say judges may not "personally solicit" funds for their campaigns. The rules were being challenged on free speech grounds by a public defender who ran for a county judgeship in Tampa, Fla., and signed a mass-mail letter seeking small contributions.
Lanell Williams-Yulee, the candidate, lost her race and was later fined $1,860 by the Florida Bar for violating its judicial code. Bar officials said judicial candidates may establish a campaign committee to solicit funds on their behalf, but they may not be seen as asking for the money directly.
Barry Richard, an attorney for the Florida Bar, said the aim is to "cut the link" between judges and fundraising so as to preserve the public's confidence in an impartial judiciary.
"There's very little impact on that candidate's free speech," he told the court. "The only thing that it says is you can't say to me: 'Give me money.'"
But he ran into sharp and skeptical questions from the court's conservatives, who five years ago in the Citizens United case freed corporations, unions and others to spend unlimited sums on campaigns.
"The fundamental choice was made by the state when they said we're going to have judges elected," Chief Justice John G. Roberts Jr. told him. He and Justice Antonin Scalia said that if judges have to run for election, they need to be able to fund a campaign.
Thirty-nine states elect at least some judges, and most of these states have adopted the American Bar Association's code of conduct, which bars judges from asking for money.
Andrew Pincus, a Washington lawyer for the unsuccessful Florida candidate, agreed it would be reasonable for states to forbid "face-to-face, one-on-one solicitation" of campaign money. But he said his client was fined for merely signing a fundraising letter. He also noted that Florida allows judges to send personal thank-you notes to those who contribute to their campaigns.
But Justice Ruth Bader Ginsburg seized on his answer as conceding that judges are different from other elected officials. "You are recognizing there's a difference," she said.
As is often so, Justice Anthony Kennedy appeared to hold the deciding vote. He has been a strong defender of the First Amendment and wrote the Citizens United opinion. It was issued on Jan. 21, 2010. But he also wrote a 5-4 opinion the year before that required a West Virginia Supreme Court judge to step aside from a civil case because he had received big campaign donations from a mining company owner who was the defendant.
The issue of elected judges has posed a dilemma. On the one hand, judges have a special duty to be impartial and not to be seen as favoring some people who may have cases before them.
On the other hand, judges who must run for election have a free speech right to campaign as a candidate, the high court has said. This includes the right to voice views on controversies, the court ruled in 2002.
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