Williams-Yulee v. Florida Bar

Issues 

Does a Florida rule of judicial conduct that bars judicial candidates from personally soliciting campaign funds violate the candidates’ First Amendment right to freedom of speech?

Oral argument: 
January 20, 2015
Court below: 

The Supreme Court will determine whether states may issue rules of judicial conduct that prohibit judicial candidates from personally soliciting campaign funds. Williams-Yulee contends that Canon 7C(1), a Florida rule of judicial conduct prohibiting judicial candidates from personally soliciting campaign funds, is unconstitutional because it restricts judicial candidates’ speech and fails strict scrutiny review since it is not narrowly tailored to serve a compelling state interest. The Florida Bar counters that the rule is constitutional because it serves the Florida’s interest in ensuring judicial impartiality and is narrowly tailored because candidates can exercise free speech and may raise funds through alternative means. The Supreme Court’s ruling in this case implicates the type of fundraising initiatives judicial candidates are permitted to take when running their campaigns.

Questions as Framed for the Court by the Parties 

Does a rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds violate the First Amendment?

Facts 

Lanell Williams-Yulee became a candidate for a Florida County Court Judgeship in September 2009. The Florida Bar filed a complaint against Williams-Yulee alleging that she violated Rules Regulating The Florida Bar.

Among other claims, The Florida Bar alleged that Williams-Yulee violated Canon 7C(1) of the Code of Judicial Conduct (“Cannon 7C(1)”), which “[o]n its face . . . prohibits a judicial candidate from personally soliciting campaign contributions.” As part of Williams-Yulee’s efforts to raise money to kick-start her judicial campaign, she signed a fundraising letter personally soliciting contributions. The letter was then mass mailed to potential voters. Williams-Yulee admitted to having reviewed and approved this letter, which she signed on September 4, 2009. In her defense, Williams-Yulee argued that it was her understanding that Canon 7C(1) “would apply only if there were another candidate in the judicial race.” When Williams-Yulee signed the fundraising letter, there were no other candidates running.

The Florida Supreme Court appointed a referee to aid in resolving the dispute. The referee rejected Williams-Yulee’s testimony regarding her misunderstanding of Canon 7C(1). The referee explained that it was clear that Canon 7C(1)’s language, “election between competing candidates”, was “used to describe the type of judicial office where the prohibition would apply,” and not the specific circumstances of any one race. Williams-Yulee also filed a “motion challenging the sufficiency of the complaint on the dual bases of delay and the constitutionality of Canon 7C(1).” The referee denied the motion. The referee found Williams-Yulee guilty of violating Canon 7C(1) and recommended she “receive a public reprimand and awarded costs to The Florida Bar in the amount of $1,860.30.” The Florida Supreme Court approved both the finding of guilt and the recommended sanction.

The Florida Supreme Court entertained Williams-Yulee’s claim that Canon 7C(1) is unconstitutional because it “limits a judicial candidate’s right to engage in free speech by prohibiting a judicial candidate from directly soliciting campaign contributions.” However, the court rejected the claim and held that Canon 7C(1) is constitutional because it “promotes [Florida]’s compelling interests in preserving the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary, and that it is narrowly tailored to effectuate those interests.”

Williams-Yulee filed a petition for writ of certiorari requesting the Supreme Court to declare Canon 7C(1), and other rules akin to it in other states, in violation of the First Amendment. The Supreme Court granted certiorari to address a circuit split about whether rules of judicial conduct that prohibit judicial candidates from personally requesting campaign contributions violate the candidates’ First Amendment rights.

Analysis 

The Supreme Court will determine whether a Florida rule of judicial conduct—Canon 7C(1)—that prohibits judicial candidates from personally soliciting campaign contributions violates the judicial candidates’ First Amendment right to free speech. Canon 7C(1) prohibits a candidate running for judicial office from personally soliciting campaign funds but permits the candidate to establish a campaign committee to solicit and manage the candidate’s campaign funds. Because Canon 7C(1) restricts speech on the basis of its content, it is subject to strict scrutiny review, meaning Florida must demonstrate that the rule is necessary to serve a compelling state interest and “does not unnecessarily circumscribe protected expression.”

Williams-Yulee argues that Canon 7C(1) does not survive strict scrutiny review because it is not narrowly tailored to serve Florida’s interests in preventing judicial corruption and bias. Williams-Yulee argues that Canon 7C(1) is both underinclusive, because Florida still permits injury to its interests through alternative means, and overinclusive, because Florida could protect its interests using less restrictive means.

On the other hand, The Florida Bar contends that Canon 7C(1) survives strict scrutiny review and does not invoke the Supreme Court’s underinclusiveness doctrine because the doctrine is applied to nullify rules that may contain a loophole that renders the rule ineffective, and there is no such loophole in Canon7C(1). Moreover, the Florida Bar argues that Canon 7C(1) is not overinclusive because candidates are still able to engage in free expression and to establish fundraising committees.

IS CANON 7C(1) UNDERINCLUSIVE TO ACCOMPLISH FLORIDA’S PURPOSES?

Williams-Yulee argues that Canon 7C(1)’s solicitation prohibition is underinclusive to prevent judicial corruption and bias, and is therefore unnecessary to accomplish Florida’s purposes for the rule. Williams-Yulee argues that Florida’s interest in preventing quid pro quo corruption cannot justify Canon 7C(1) because Florida has the same interest in preventing quid pro quo corruption of elected officials in other contexts, yet Florida only prohibits judicial candidates from soliciting campaign contributions. Williams-Yulee also claims that Canon 7C(1) is not necessary to prevent judicial bias because a judicial candidate can still learn who contributed to the campaign by reviewing the campaign committee’s reports or serving as the committee’s treasurer. According to Williams-Yulee, knowledge of who contributes creates the potential for bias, and the recipients of campaign solicitations may feel pressured—knowing the candidate will learn whether the recipient contributed—to contribute out of fear of falling out of favor with the judge. Finally, Williams-Yulee claims that Canon 7C(1) permits judicial candidates to solicit other kinds of support, such as time working on the candidate’s campaign committee, that raise the same risks of bias as monetary requests.

The Florida Bar counters that Canon 7C(1) is not underinclusive and that none of Williams-Yulee’s complaints render the rule unconstitutional. According to The Florida Bar, the potential for quid pro quo corruption derives from the direct link between the contributor and the candidate. The Florida Bar contends that, under the Supreme Court’s analysis of First Amendment claims, the underinclusiveness doctrine is applied to invalidate rules containing loopholes that render the rule ineffective and “cast suspicion” on the motive of the legislature. According to The Florida Bar, the underinclusiveness doctrine is not implicated in this case because Canon 7C(1) does not contain any such loophole, since it serves Florida’s interest by severing the direct link between contributors and candidates. Moreover, The Florida Bar claims that Canon 7C(1) is limited to judicial candidates because the Florida Supreme Court, under Florida’s constitutional separation of powers provision, does not have constitutional authority to establish ethical rules for the executive or legislative branches. The Florida Bar further argues that the candidate’s ability to learn who contributes to the campaign does not render Canon 7C(1) ineffective because the relationship is between the contributor and the third-party fundraiser. Thus, The Florida Bar claims that at the time the contribution is made, the contributor does not know if the candidate will learn of the contribution, and the candidate does not know whether the relationship between the contributor and the campaign fundraiser inspired the contribution. Finally, The Florida Bar claims that Williams-Yulee’s argument that non-monetary support raises the same risks as monetary support is meritless because Florida could reasonably have found that there was a greater risk of quid pro quo corruption with monetary contributions than voluntary labor.

IS CANON 7C(1) OVERINCLUSIVE IN SERVING FLORIDA’S INTERESTS?

Williams-Yulee asserts that Canon 7C(1) is overinclusive and not narrowly tailored because not all forms of personal solicitation endanger Florida’s interests and there are less restrictive means for achieving the rule’s purposes. According to Williams-Yulee, because Florida banned judicial candidates from using any form of personal solicitation under the rule, Florida must show that every form of personal solicitation endangers its interests. Williams-Yulee claims, therefore, that the rule is overinclusive because mass mailings and speeches to large audiences requesting donations do not endanger the judiciary’s integrity. According to Williams-Yulee, such forms of solicitation might not beget any contributions at all, and no person could reasonably believe that a donation given after a candidate’s request for contributions at a large rally, or failure to respond to a mass mailing, would lead a judge to treat the person differently in future dealings. Williams-Yulee also argues that Florida can further its interests using less restrictive means, such as by permitting parties to request recusal for fear of bias or by setting contribution limits. Williams-Yulee claims that recusal is a better alternative to Canon 7C(1) because it disqualifies judges from presiding over matters where there is a risk of partiality without infringing on judicial candidates’ First Amendment right to freedom of speech. Although there may be burdens associated with recusal, Williams-Yulee argues no such burden is so great as to permit a restriction on free speech. Williams-Yulee also claims that contribution limits are a better alternative to Canon 7C(1) because limitations provide only a marginal restriction on free speech and also protect against the risk of judicial corruption and bias from the candidate’s fundraising committee.

The Florida Bar counters that Canon 7C(1) is not overinclusive and is narrowly tailored because it does not prohibit judicial candidates from engaging in free expression and it permits candidates to solicit monetary contributions through their committees. Relying on the Supreme Court’s findings in Buckley v. Valeo and McConnell v. FEC, the Florida bar claims that although candidates are personally restricted from soliciting contributions, the existence of similar opportunities for soliciting contributions through the candidate’s committee is evidence of narrow tailoring. The Florida Bar argues that Canon 7C(1)’s complete ban on personal solicitations is reasonable because a narrower rule would be unmanageable and difficult to apply. Indeed, The Florida Bar claims, Williams-Yulee’s argument that the rule is overinclusive is similar to the one rejected by the Court in Buckley, where the Court stated that legislation is not invalidated simply because Congress did not fine tune it, and that “distinctions in degree become significant only when they can be said to amount to differences in kind.” The Florida Bar also claims that the ban on personal solicitation is only a marginal restriction on freedom of speech and is similar to the Court’s finding on contribution limits in McConnell, where the Court held contribution limits to be constitutional. Moreover, The Florida Bar further argues that recusal is not a reasonable substitute for Canon 7C(1) because it does not prevent the potential for corruption since judges decide whether to recuse themselves and recusal is seldom subject to constitutional challenge. Finally, The Florida Bar maintains that Canon 7C(1) is constitutional because it does not place any greater restrictions on candidates’ freedom of speech than contribution limitations, and Congress never limited First Amendment restrictions to contribution limitations.

Discussion 

This case presents the Supreme Court with the opportunity to resolve a circuit split over the constitutionality of rules of conduct prohibiting judicial candidates from personally soliciting campaign funds. Williams-Yulee argues that Canon 7C(1) fails strict scrutiny review because the rule is not narrowly tailored to prevent judicial corruption and bias. The Florida Bar counters that Canon 7C(1) survives strict scrutiny review because the rule does not have to cover every potential problem and judicial candidates can engage in free expression as well as establish fundraising committees. The outcome of this case could increase the potential for corruption in the judicial process or discourage potential judicial candidates from participating in the election process.

DOES CANON 7C(1) DISCOURAGE JUDICIAL CANDIDATES FROM RUNNING?

Williams-Yulee argues that Canon 7C(1) harms judicial races by discouraging some prospective judicial candidates from running. Williams-Yulee explains that candidates may fear any communication with prospective voters because those communications may be taken as a request for financial support. Williams-Yulee further argues that candidates shy away from judicial races because if they face a complaint from the Bar for allegedly violating Canon 7C(1), their careers as attorneys could be in jeopardy.Williams-Yulee also contends that Canon 7C(1) favors incumbent judges and wealthy candidates over non-judicial and low-income candidates. Williams-Yulee explains that well-positioned candidates depend less on the efficiency of their fundraising committee because those candidates are either already known or do not require great donations from the public.

The Florida Bar counters that Canon 7C(1) strikes the perfect balance between allowing judicial candidates enough fundraising opportunities for their campaigns while also preventing judicial corruption and bias. The Florida Bar explains that judicial candidates can select a capable fundraising committee and avoid facing complaints from The Florida Bar by allowing the committee to fully conduct the necessary fundraising for the campaign. The Florida Bar also contends that the benefit of severing “the direct link between the judicial candidate and the contributor,” is greater than any benefit that would arise from allowing a candidate to personally solicit campaign funds.

DOES CANON 7C(1) INCREASE JUDICIAL IMPARTIALITY AND EFFECTIVENESS?

Williams-Yuleeclaims that judicial candidates should be allowed to personally fundraise because although Canon 7C(1) sets out to preserve judicial impartiality and citizens’ confidence in the judicial system, there is no evidence to prove that Canon 7C(1) in fact accomplishes those tasks. Furthermore,the Thomas Jefferson Center for the Protection of Free Expression (“Thomas Jefferson Center”) argues, in support of Williams-Yulee, that the Supreme Court recognizes the importance of allowing judges to freely express themselves. The Thomas Jefferson Center explains that judges currently give talks and write books on matters important to the public. According to the Thomas Jefferson Center, these forms of communication and “any participation by judges in public life that deviate[] from a perfectly cloistered judiciary could affect the public’s views on the impartiality of judges.” The Thomas Jefferson Center contends that if Canon 7C(1) were found constitutional through the recognition of “a compelling state interest in preventing the mere appearance of the potential for bias,” states would be invited to further restrict the speech of judges and judicial candidates.

The Florida Bar counters that there is “sufficient governmental interest arising from the quid pro quo potential for corruption and the appearance of corruption ‘inherent’ in certain contributions and solicitation of contributions directly to candidates.” The Florida Bar further explains that there is evidence proving that the public believes that judicial campaign contributions will influence judges’ decision-making. Moreover, The Florida Bar argues that the importance of “public confidence in the integrity of the judiciary is essential to the maintenance of a free, stable, and just democracy.” As a result, The Florida Bar maintains, Florida’s interest in preventing judicial corruption is compelling, regardless of whether it appears to prevent it or in fact accomplishes it.

Conclusion 

The Supreme Court will decide whether a Florida rule of judicial conduct that prohibits candidates for judicial office from personally soliciting campaign funds, Canon 7C(1), violates the First Amendment. Williams-Yulee argues that Canon 7C(1) does not survive strict scrutiny review because it is not narrowly tailored to serve Florida’s interests in preventing judicial corruption and bias. On the other hand, the Florida Bar argues that Canon 7C(1) survives strict scrutiny review because the rule is not rendered ineffective by loopholes and does not prevent judicial candidates from engaging in free expression or establishing fundraising committees. If the Court finds Canon 7C(1) unconstitutional, the impartiality of judges may be affected by the “quid pro quo potential for corruption and the appearance of corruption ‘inherent’ in certain contributions and solicitation of contributions directly to candidates.” On the other hand, if the Court upholds Canon 7C(1), this may discourage potential judicial candidates from participating in the election process.

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Additional Resources 

Current and Recent Cases of Interest, Fair Courts Litigation Task Force.

Williams-Yulee v. The Florida Bar, Brennan Center for Justice (Oct. 23, 2014).

Adam Liptak: Judges on the Campaign Trail, The New York Times (Sept. 27, 2014).

Greg Stohr: Judicial Campaign Solicitations Get Supreme Court Review, Bloomberg (Oct. 2, 2014).

Stephen Wermiel: SCOTUS for law students: Financing judicial elections, SCOTUS Blog (Dec. 23, 2014).