Public Citizen and Democracy 21 File Amicus Brief in the Supreme Court Defending Constitutionality of Florida’s Ban on Solicitation of Campaign Contributions by Judges

Last week, Democracy 21 joined with Public Citizen to file an amicus brief in the U.S. Supreme Court defending the constitutionality of a Florida law which bans the solicitation of campaign contributions by state court judges.  The brief was filed on December 23, 2014 in the case of Yulee v. The Florida Bar.

The State of Florida has a system for election of state court judges, but Florida law restricts judicial candidates from soliciting campaign contributions.  The challenger in the case contends that the Florida ban violates his First Amendment right to free speech.

In defending the ban, the amicus brief filed by Public Citizen and Democracy 21 argues that states which choose to elect their judges “do not forfeit the right to protect the appearance and reality of a fair judicial system.”  According to the brief:

Elected judges, no less than appointed judges, must not only be, but also appear to be, fair and impartial as between  the parties who appear before them.  Florida’s restriction on personal solicitation of campaign contributions by judicial candidates is an appropriate and constitutional tool for protecting the integrity of its courts – and the critically important public perception of their integrity.

Scott Nelson, a senior attorney with the Public Citizen Litigation Group served as lead counsel on the amicus brief, joined by former U.S Solicitor General Seth Waxman, a partner in WilmerHale. Democracy 21 President Fred Wertheimer and outside counsel Donald Simon, a partner in Sonosky, Chambers, Sachse, Endreson & Perry, also were attorneys on the brief.

According to Democracy 21 President Wertheimer:

The Supreme Court by a 7 to 2 vote in the McConnell case upheld a ban on officeholders soliciting large contributions, with Justice Kennedy joining the majority. When ‘impartial’ judges solicit campaign contributions from donors whose cases they may be deciding, there are similar kinds of dangers to those recognized by the Court in the McConnell case. The Justices  must recognize here that the judicial process in Florida and in other states will be greatly damaged if they strike down the solicitation ban.

The amicus brief states that the ban may be upheld under the First Amendment if it is “closely drawn to serve a sufficient state interest.”  The brief adds:

The vital state interest here – preservation of the judicial system’s appearance of impartiality – is more than sufficient.  Indeed, this Court’s recent campaign finance decisions addressing the scope of the legitimate governmental interest in combating corruption in elections for political office underscore the differences between elections for judicial and political office and the significance of a state’ interests in protecting the judicial integrity in regulations applicable  solely to judicial elections. Critical to the Court’s analysis in those cases was the view that favoritism and influence are to some degree inherent and expected attributes of representative politics. Quite the opposite is true of judicial officers: Favoritism, influence, preferred access, and ingratiation have no place in judicial decisionmaking, and all states have compelling interests in protecting the actual and perceived neutrality of judges.

The brief continues:

Florida’s restriction of direct solicitation by judicial candidates directly serves those interests. Political contributions to judges create at least the appearance, and quite possibly the reality, of judicial partiality and harm the judicial system’s legitimacy. Although contributions may be an inherent feature of privately financed judicial election campaigns, restrictions targeting solicitation aim at the transaction in the fundraising process that is most likely to create the appearance or reality that justice is for sale: The judicial candidate’s direct request for financial support from a donor who is or may be interested in the outcome of cases the candidate, as judge, is supposed to preside over with strict neutrality.

The brief argues that alternative measures to protect the integrity of the judicial process, such as a recusal requirement, will not effectively address the problem:

After-the-fact remedies, such as recusal, do not obviate the need to restrict practices at the root of the problem. Even assuming their efficacy, which is doubtful in all but extreme cases, such remedies involve substantial systemic costs and difficulties. Measures such as the Florida rule that aim at preventing rather than palliating appearances of partiality are superior—and constitutional—ways of pursuing the state’s interest in protecting its judicial system.