One of the top judicial ethics stories of 2015 will be the U.S. Supreme Court decision on the question, “Does a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violate the First Amendment?” That challenge to the personal solicitation clause comes in a bar discipline case in which the Florida Supreme Court reprimanded an unsuccessful judicial candidate who had signed a letter soliciting campaign contributions during her campaign. Florida Bar v. Williams-Yulee, 138 So. 3d 379 (Florida 2014). The state court rejected the constitutional challenge, concluding the prohibition is narrowly tailored to effectuate “the State’s compelling interests in preserving the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary . . . .” The court noted that other state supreme courts have also upheld the prohibition while “federal courts that have considered this issue—whose judges have lifetime appointments and thus do not have to engage in fundraising—are split.” (For more information, see the Center for Judicial Ethics compilation on caselaw following White.)
The reprimanded attorney filed a petition for writ of certiorari, which the Florida Bar supported, and the U.S. Supreme Court granted review.
The last time the U.S. Supreme Court spoke on the constitutionality of a canon in the code of judicial conduct was in 2002, when it held unconstitutional a clause that prohibited judicial candidates from announcing their views on disputed legal and political issues. Republican Party of Minnesota v. White, 536 U.S. 765 (2002). That 5-4 decision left numerous questions unanswered – including the core question whether judicial elections can be different from other elections – and resulted in numerous other challenges. (In the interim, the Court decided, in 2009, that, when campaign contributions from the principal of one of the parties “had a significant and disproportionate influence” on the election of a justice, the risk of actual bias was “sufficiently substantial” to require disqualification under the Due Process Clause of the U.S. Constitution. Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).)
23 states have the personal solicitation clause, which is also in the ABA Model Code of Judicial Conduct. (8 states have a narrower version of the prohibition; 11 states that have judicial elections do not prohibit personal solicitation of campaign contributions by judicial candidates; 8 states have no judicial elections.)
Numerous amicus briefs have been filed in the case. The American Civil Liberties Union, several former judicial candidates who challenged the clause in other states, and the Thomas Jefferson Center for Free Expression have filed amicus briefs in opposition to the canon. Amicus briefs have been filed in support of the canon by the Conference of Chief Justices, the attorney generals from 11 other states that have the prohibition, the American Bar Association, 3 former chief justices of the Florida Supreme Court and 9 active members of The Florida Bar, 4 former justices of the Texas and Alabama Supreme Courts (2 states that do not have the prohibition), the Brennan Center and Justice at Stake, and numerous other organizations and individuals.
Oral argument on the challenge to the personal solicitation clause is set for January 20.