The Constitution guarantees us the right to choose our own rulers.
For our choice to be meaningful, we need free access to all types of speech: information, debate, and argument.
This is why political speech is at the core of the First Amendment’s guarantee of free speech.
Unfortunately, the Supreme Court backed away from that guarantee this year with its decision in Williams-Yulee v. The Florida Bar. Ms. Williams-Yulee, who was running for county judge, drafted a letter in which she summarized her qualifications and requested financial support to help her communicate her message to the public. She then mailed the form letter to the community and posted it on her website. Ms. Williams-Yulee lost the election. For her efforts, the Florida Supreme Court reprimanded her and imposed almost two thousand dollars in court costs for the “personal” solicitation of campaign funds.
Although the Supreme Court has traditionally been skeptical of government attempts to regulate speech by those running for public office, it reversed course in Ms. Williams-Yulee’s case. The majority decision relies on a dubious interpretation of First Amendment case law, incorrectly concluding that the Florida Supreme Court’s rule was addressing a critically important problem in the least restrictive way possible. In the majority’s view, public confidence in the integrity of the judiciary—the public perception that judges are fair and impartial—would be compromised by any “personal” solicitation for campaign contributions.
But the “personal” nature of Ms. Williams-Yulee’s solicitation was open to serious question. She sent the fundraising letter to voters in a mass mailing. The letter was also posted on her website where the public could see it. The only thing even remotely “personal” about the letter was her signature. It’s hard to see how a widely-distributed form letter could undermine the appearance of judicial integrity, much less raise questions about a candidate’s actual integrity.
Logic and reason may not have been the primary basis for the majority’s conclusion on this point. As Justice Scalia pointed out in his dissent, the majority appears to have been motivated by its distaste for the idea of judges standing for election. If so, then the majority’s assessment of the letter’s risk to judicial integrity more reflects a lack of appreciation for state judicial selection (judges in 39 states face an election at some point) than it reflects superior wisdom about the essence of the judicial role.
The Court also clearly misapplied the legal principle that speech regulations must be “narrowly tailored,” which means that the restrictions can be no more restrictive than necessary. But Florida’s ban applied to soliciting donations from anyone, including those who could never appear before that judge as litigants and therefore could never give occasion for partiality or bias, leading Justice Alito to point out in dissent that it was “as narrowly tailored as a burlap bag.” State governments can now order candidates for judicial office not to personally solicit financial support from anyone—not family, not friends, no one.
The immediate effect of the Supreme Court’s ruling will be to entrench incumbent judges. Like other officials, incumbent judges have enormous advantages that come with incumbency: name recognition, relationships with community power brokers, and experience. For challengers, on the other hand, everything depends on whether they can communicate a compelling message to voters. And communicating that message requires challengers to raise money. Williams-Yulee makes the challengers’ task much harder.
The other big winners from the Court’s decision in Williams-Yulee are wealthy lawyers who can afford to pay for their own judicial campaigns and politically connected candidates who won’t have to ask for donations. Candidates like local prosecutors and public defenders, who have solid practical experience but never amassed a personal fortune, can now be effectively shut out from competing fairly in judicial elections against the wealthy and powerful.
“The only maxim of a free government,” John Adams wrote, “ought to be to trust no man living with power to endanger the public liberty.” We should be particularly worried about restrictions that impair the democratic process because they almost always entrench incumbent public officials, the wealthy, and the powerful. Restrictions on speech in judicial elections virtually guarantee that the government will use its power—power that ultimately comes from the people anyway—to insulate itself from accountability.
And that is fundamentally undemocratic.
Jonathan Keim is Counsel for the Judicial Crisis Network.
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