Supreme Court: 'Judges are not politicians' when it comes to fundraising

Richard Wolf | USA TODAY

WASHINGTON — A Supreme Court that has given the green light to unlimited spending in political campaigns ruled Wednesday that judicial candidates don't always have the same right to solicit contributions as other politicians.

The justices ruled 5-4 that Florida's judicial code of conduct can ban candidates from asking for donations. As a result, in 30 states that elect state and local judges, restrictions on fundraising by judicial candidates can remain in place.

Chief Justice John Roberts was joined by the court's four liberal justices in an unusual alignment against the other four conservatives. He wrote for the majority that "judges are not politicians, even when they come to the bench by way of the ballot."

While he acknowledged that Florida's code allows a judicial candidate's political committee to solicit funds, and even lets the candidates thank donors, Roberts said directly asking for money is most likely to harm the public's confidence in an independent judiciary.

"The identity of the person asking for money matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest," he said. "When the judicial candidate himself asks for money, the stakes are higher for all involved."

The court's other four conservatives dissented in three separate opinions. Justices Antonin Scalia and Clarence Thomas said Florida's restriction was too broad, sweeping in donors who have "no chance of ever appearing in the candidate's court." They accused the majority of simply opposing judicial elections.

"One cannot have judicial elections without judicial campaigns, and judicial campaigns without funds for campaigning, and funds for campaigning without asking for them," Scalia wrote.

Justice Anthony Kennedy cited "the irony in the court's having weakened the rigors of the First Amendment in a case concerning elections," which he said were "intended to protect freedom in so many other manifestations."

And Justice Samuel Alito said the court's majority opinion "is about as narrowly tailored as a burlap bag," potentially making other forms of judicial electioneering subject to state restrictions.

The case pitted two ideals held in high esteem by the court — free speech and judicial integrity.

But after several cases in which the court has expanded the rights of campaign donors and special interest groups to contribute to presidential and legislative campaigns — from its Citizens United ruling in 2010 allowing unlimited spending by independent groups to last year's decision removing overall limits on wealthy donors — the justices drew the line at the courthouse door.

The decision went against Lanell Williams-Yulee, a losing county court candidate who ran afoul of the Florida Bar's canon of ethics in 2009 and was reprimanded and assessed $1,860.30 in court costs for signing a fundraising letter. She had argued that Florida's restriction was full of holes, because it did not prevent would-be judges from learning who contributed to their campaigns or sending thank-you notes.

Groups opposed to judicial electioneering hailed the ruling. Caroline Fredrickson, president of the liberal American Constitution Society, said it "recognizes the corrosive effect money has had in judicial elections and helps to restore the image of state courts as fair and impartial."

Rick Hasen, a campaign finance expert at the University of California-Irvine School of Law, said the ruling could boost efforts to impose spending limits in judicial elections, which also would face First Amendment objections.

Thirty-nine states elect at least some of their judges. Only Connecticut, Delaware, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, Rhode Island, South Carolina, Vermont and Virginia appoint all judges.

Thirty of those states restrict candidates' solicitation of campaign cash, 22 of them as strictly as Florida. Those rules have been deemed legal by state courts, but federal courts are divided, which forced the Supreme Court to intervene.

Spending in state Supreme Court elections escalated from $83 million in the 1990s to more than $200 million from 2000 to 2009. It reached a peak in 2011-12, when nearly $30 million was spent on TV ads alone, according to the Brennan Center for Justice at NYU School of Law and Justice at Stake, which lobbies to keep courts impartial.

During oral arguments in January, Roberts said states effectively paved the way for the type of campaign fundraising Florida blocked "when they said we're going to have judges elected." In announcing his decision, however, the chief justice said the issue of whether judges ought to be elected was beyond the court's jurisdiction.

"It is not the court's place to resolve this enduring debate," he said.