In April, the U.S. Supreme Court rejected a First Amendment challenge to the prohibition on judicial candidates personally soliciting campaign contributions and affirmed the public reprimand of a former judicial candidate for a letter asking for contributions that she had mailed and posted on her campaign web-site. Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015). In the first post-Williams-Yulee judicial discipline cases involving political conduct, the New York State Commission on Judicial Conduct recently publicly admonished 2 part-time judges for directly and indirectly making contributions to political organizations and candidates.
One of the judges made over 60 political contributions directly (mostly to presidential campaigns, candidates in other states, and national political organizations) and over 30 contributions to local candidates indirectly through his law firm. The second judge’s law firm bought 71 ticket to politically sponsored dinners and made 37 contributions to political organizations and candidates, and the judge’s wife bought 2 tickets to political functions using their joint bank account. The type or timing of the contributions, both by the judges and their law firms or spouse, violated the New York rules governing judicial conduct as interpreted in opinions by the Advisory Committee on Judicial Ethics.
The Commission noted that, after the U.S. Supreme Court’s 2002 decision in Republican Party of Minnesota v. White, “some commentators . . . believed that the Supreme Court had greatly expanded a judge’s right to engage in traditional forms of political activity . . . .” The decision in Williams-Yulee suggested otherwise and “underscore[ed] that ‘judges are not politicians’ and that judicial elections may be regulated differently from political elections . . . .” The Commission concluded that, although the judges’ conduct in the current cases was different from that in Williams-Yulee, “it is clearly prohibited by a rule in New York that has not been diminished or weakened by prior precedent.” It emphasized: “The Commission is not a court, and it is our role to interpret and apply the ethical rules, not to make broad constitutional pronouncements.” (The Commission also relied on In the Matter of Raab, 793 N.E.2d 1287 (New York 2003), in which the New York Court of Appeals had rejected a judge’s constitutional challenge to the prohibition on judges’ contributing to political organizations or candidates.)
Although the 2 judges agreed to the sanctions, 2 members of the Commission dissented and argued that the admonishments violated the First Amendment, relying, like the majority, on William-Yulee. (A third member dissented insofar as one of the sanctions was for contributions to candidates seeking elected office in federal elections.) The dissent argued:
Rather than read Williams-Yulee as an endorsement of any and all restrictions on political activity by judges and judicial candidates that appear to be “desirable” as a matter of preferred policy, we should respect the Court’s clear message: that judicial campaign speech and conduct are core First Amendment activity, that a compelling interest must be identified if a narrow rule is to be upheld, that personal solicitation of campaign contributions by judicial candidates is such an interest that cuts to the core of judicial integrity, that strict scrutiny requires analysis of the campaign activity at issue to determine whether the compelling governmental interest (appearance of corruption) legitimately requires restriction of that particular activity, and that the rule restricting judicial speech is the least restrictive available to support the compelling governmental interest at stake.
Particularly because the contributions at issue were to national candidates and political organizations, by a judge’s spouse, or by the law firm of a part-time judge, the dissent criticized the majority’s failure to analyze whether the contributions were inconsistent with and the ban justified by a compelling governmental interest. For example, the dissent stated that, “[i]f the limitations on political activity by judges are intended to promote public confidence in the judiciary by distancing judges from local politics and avoiding the appearance of ‘buying’ a judgeship, a rule that would prohibit a town justice from contributing to a presidential campaign is clearly too broad . . . .”