Once upon a time, judicial elections were low-budget, sleepy affairs, with most voters paying little attention to the down-ballot candidates seeking to be elected to state courts.
But as the tendrils of big money have crept across the political arena after the landmark 2010 Citizens United decision, which unleashed an avalanche of outside money on political campaigns, not even the courts have been spared the influence of large contributions.
An upcoming Supreme Court case offers a window into concerns about whether elected judges feel beholden to donors, whose cases then often go before their courts.
On Jan. 20, the Supreme Court will hear arguments in Williams-Yulee v. the Florida Bar, regarding a Florida statute that bars judges from directly soliciting campaign contributions and whether that violates the freedom of speech protections enshrined in the First Amendment.
In 2009, Laurel Williams-Yulee signed a mass mailing asking for donations to her bid for Hillsborough County judge. The Florida Supreme Court found her in violation of the state code of judicial conduct, which bars personal solicitations from judges. (It stipulates that they be made through a separate campaign committee.) Williams-Yulee challenged the ruling, saying the statute violated her free speech protections.
“The reproduction of a candidate’s signature on a contribution letter will not magically endow him or her with a power to divine, first, to whom that letter was sent and, second, whether that person contributed to the campaign or balked at the request,” Williams-Yulee’s lawyers argued in their petition before the Supreme Court. “No one could reasonably believe that a failure to respond to a signed mass mailing asking for donations would result in unfair treatment in future dealings with the judge.”
Thirty-nine states allow for the popular election of at least some judges, and 30 states put some kind of restriction on those candidates’ personal solicitation of funds.
Although Williams-Yulee received no contributions in response to the mailing and ultimately lost her election, similar restrictions in other states have divided the courts that have ruled on them. Four federal courts of appeal have ruled that such prohibitions are unconstitutional, and two other federal courts and four state supreme courts have upheld such provisions, indicating that they help avoid the appearance of impropriety.
Several legal analysts said that, given the deluge of money that has recently entered state judicial elections, the Florida regulation prohibiting direct solicitation is relatively modest.
“The limit on speech is very narrow. The only thing that a judge can’t say is ‘Please give me money,’” said Matthew Menendez, a counsel for the Brennan Center for Justice. “They can talk about their credentials. They can talk about their judicial philosophy. The only regulation on speech is that the ask has to come through a candidate committee. One of the things we’ll be looking at is to see is how the court conceives asking for money as close to the core or near the outer fringes of the First Amendment values we’re looking to protect.”
Television spending on state supreme court races surged to nearly $14 million in 2014, according to the Brennan Center for Justice, with $4.9 million coming from outside groups and surpassing the $12.2 million spent in the 2010 elections. A separate analysis in 2010 found that spending on state supreme court elections has more than doubled in the last two decades, from $83.9 million from 1990 to 1999 to $206.9 million from 2000 to 2009.
Tracey George, a professor of law and political science at Vanderbilt University, said there is a body of research that shows those contributions have a measurable effect on how judges rule.
“Scholars have found that there is a strong relationship between campaign contributions and judges’ voting,” she said. “These studies specifically demonstrate that the identity and interest of donors impact the decisions that judges make. Money biases — whether consciously or subconsciously — the recipient’s subsequent actions.”
George noted that business groups, law firms and lobbyists, which have business before the state courts, are often the largest contributors to judicial campaigns.
“Inevitably, when you ask for something and someone provides it for you, you feel a sense of obligation,” she said. “I don’t mean to be taken to say judges are behaving unethically knowingly. I think it’s simply human nature, this reciprocity principle.”
Retired Supreme Court Justice Sandra Day O’Connor has raised alarms about money and special interests undermining the integrity of the judicial branch. “In too many states, judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the Constitution,” she wrote in the foreword to a 2010 Brennan Center report on judicial elections.
The Florida statute was enacted in response to a corruption scandal that rocked the state Supreme Court in the 1970s, resulting in the resignation of four judges who offered favorable rulings to campaign contributors.
Scott Greytak, policy counsel and research analyst for the advocacy group Justice at Stake, which opposes the popular election of judges, said that although the Florida case is relatively narrow in scope, it raises the issue of whether the judicial branch can remain fair and impartial if there are not restrictions placed on judges’ relationships with campaign contributors.
“It’s a good reflection of this new judicial culture, a culture where judges are being forced to raise vastly larger sums of money than before,” he said. “When these candidates become elected, they find themselves oftentimes trapped in a culture that then perpetually challenges their ability to be fair and impartial.”
Greytak said that the health of the judiciary relies on public confidence and that the public is increasingly skeptical of the impartiality of courts. Personal solicitation bans, he argued, are helpful in at least partly restoring that trust.
“Personal solicitation bans do have a real impact on public confidence and show there’s a real measurable value in banning judges from soliciting funds directly,” he said. “These bans are part of a much larger solution.”