Concept
Solicitation and the First Amendment
Judicial candidates: independence and impartiality in elections
Solicitation and the First Amendment
Rule 4.2(A)(1) directs a judicial candidate to act at all times consistently with the independence, integrity, and impartiality of the judiciary, and the campaign rules in this chapter apply that sentence to particular tactics.1 Almost every one of them also limits what a candidate may say or do while running. A candidate may not vow how a class of cases will come out, knowingly mislead the electorate, comment on a pending case, or personally ask for the money a campaign runs on. The candidate is also a speaker asking voters for a job, and the First Amendment protects that speech. A state that enforces such a rule must therefore be ready to defend it in court.
The leading defense came in Williams-Yulee v. Florida Bar, where in 2015 the Supreme Court revisited the constitutional validity of Code restrictions on judicial campaign speech.2 The restriction at issue was the solicitation clause, which the Model Code includes and the states have widely adopted. It lets a judicial candidate raise money through a campaign committee but forbids the candidate to solicit donors directly, in order to avoid real or perceived coercion when a candidate asks for funds from parties or lawyers likely to appear before the candidate later as a judge.3
The case puts four questions that a court asks of any content-based limit on speech. What did the candidate do, and what standard governs? Is the State’s interest compelling? Does the rule restrict so little speech that the interest looks pretended? Does it restrict so much that a gentler rule would serve? The answers rest on the three values that Rule 4.2(A)(1) names, and they explain why a rule that burdens a candidate’s speech can stand.
Facts and Holding
Williams-Yulee v. Florida Bar, 575 U.S. 433 (2015), held that the First Amendment permits a State to forbid judicial candidates to solicit campaign funds personally.4 The Court began from a premise about the office: “Judges are not politicians, even when they come to the bench by way of the ballot.”5 A State that elects its judges therefore keeps the power to regulate how they campaign, and it need not treat a judicial candidate like a campaigner for political office.6 The holding permits such a ban and does not require one: “A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.”7
Florida is one of 39 States where voters elect judges at the polls, and to promote public confidence in the integrity of the judiciary its Supreme Court adopted Canon 7C(1) of the Code of Judicial Conduct.8 The canon provides that a judicial candidate “shall not personally solicit campaign funds . . . but may establish committees of responsible persons” to raise money for the campaign.9 It divides one activity between two actors: the candidate may not ask, and a committee may. Florida is not alone in drawing the line there. According to the American Bar Association, 30 of the 39 States that elect trial or appellate judges have adopted restrictions similar to Canon 7C(1).10
Lanell Williams-Yulee ran for a county court seat in Hillsborough County, Florida. She signed a letter announcing her candidacy that asked for early contributions of $25 to $500, mailed it to local voters, and posted it on her campaign website.11 She lost the primary to the incumbent judge, and the Florida Bar then charged her with violating Rule 4–8.2(b), which requires judicial candidates to comply with Florida’s Code of Judicial Conduct, including the ban on personal solicitation in Canon 7C(1).12 Yulee admitted that she had signed and sent the letter. Her defense was that the First Amendment protects a judicial candidate’s right to solicit campaign funds in an election.13
A referee held a hearing, recommended a finding of guilt, and proposed a public reprimand and $1,860 in costs.14 The Florida Supreme Court upheld the discipline in two steps. It found a compelling state interest, and it found the canon narrowly tailored because it “insulate[s] judicial candidates from the solicitation and receipt of funds while leaving open, ample alternative means for candidates to raise the resources necessary to run their campaigns.”15
The level of scrutiny came first. Because Canon 7C(1) restricts fully protected speech on the basis of content, it presumptively violates the First Amendment, and the State may save it only by showing that it is narrowly tailored to serve a compelling interest.16 A lesser standard, the Court explained, would threaten “the exercise of rights so vital to the maintenance of democratic institutions.”17 The test has two stages because a law that singles out speech by its subject can be used to silence disfavored messages. The State must therefore show both that its goal is weighty enough to justify the burden (a compelling interest) and that the law reaches no further than the goal requires (narrow tailoring). The Court added that “it is the rare case” in which a State carries that burden.18
The Chief Justice’s opinion is the opinion of the Court except as to Part II, which addresses the level of scrutiny and drew only a plurality.19 The remaining parts apply the compelling-interest and narrow-tailoring test to Canon 7C(1), and that application decided the case. The canon satisfies strict scrutiny, and the Court affirmed the judgment of the Florida Supreme Court.20
The two letters share their amounts, audience, and medium, so none of those facts can decide the result. Only the identity of the person who asks differs. The Court’s reasoning ties the harm to the direct link between candidate and donor, and a committee breaks that link. The regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity led Florida and most other States to sever the direct link between judicial candidates and campaign contributors.21 A wide audience therefore gives the candidate no defense, because the canon asks who made the request and not how many people received it.
Students misread this case in two directions. Some take it to ban judicial fund-raising altogether, although the canon lets committees raise money and the Court upheld only the ban on the candidate’s own request. Others assume that a content-based restriction cannot survive strict scrutiny, yet this one did, because Florida’s interest in public confidence in the integrity of its judiciary was compelling and the canon was tailored to it.22
Compelling Interest
Strict scrutiny asks first whether the State’s goal is compelling, and the Court held that Florida’s was. The State has a compelling interest in preserving public confidence in the integrity of its judiciary, and Canon 7C(1) advances it.24 That interest gives the values in Rule 4.2(A)(1) their practical force, because a candidate who must act at all times consistently with independence, integrity, and impartiality is protecting what the public needs to believe about the bench.25 Two questions follow: why that belief counts as compelling, and why a judge cannot be treated like a politician in protecting it.
The Court found the fit between canon and interest intuitive. A judge is charged with strict neutrality and independence, and a judge who supplicates campaign donors cannot keep that charge without diminishing public confidence in judicial integrity.26 The common law judicial oath binds a judge to “do right to all manner of people . . . without fear or favour, affection or ill-will,” and the oath federal judges take promises to “administer justice without respect to persons, and do equal right to the poor and to the rich.”27 From that tradition the Court drew the conclusion Florida and most other States had reached: the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.28
The interest weighs heavily because of the judiciary’s place in government. Unlike the executive or the legislature, the judiciary “has no influence over either the sword or the purse; . . . neither force nor will but merely judgment.”29 Its authority therefore depends in large measure on the public’s willingness to respect and follow its decisions, and, as Justice Frankfurter put it for the Court, “justice must satisfy the appearance of justice.”30 A court that loses public confidence loses its only support, which is why a risk to appearances can be serious even when no particular judge has done wrong. The appearance standard taught earlier in this chapter rests on the same ground.
The Court then separated judges from politicians. A State’s compelling interests in regulating judicial elections extend beyond its interests in regulating political elections, because judges are not politicians.31 Politicians are expected to be appropriately responsive to the preferences of their supporters, and the Court, citing the plurality in McCutcheon v. Federal Election Commission, treated that responsiveness as central to self-governance through elected officials.32 A judge stands in the opposite position. In deciding cases, a judge is not to follow the preferences of his supporters or give any special consideration to his campaign donors, and the Court invoked John Marshall’s ideal of a judge “perfectly and completely independent, with nothing to influence or controul him but God and his conscience.”33 Precedents applying the First Amendment to political elections therefore have little bearing on the issues here.34
The difference in role changes what a gift means. A contribution to a legislator invites a response from someone whose job is to listen to supporters, so the exchange fits the office. The same contribution to a judge invites a response from someone whose job is to disregard supporters, so any suggestion that the gift mattered contradicts the office itself. An act that is ordinary for a politician becomes a source of doubt when a judge performs it.
Both candidates made the same request in the same amount, so the request cannot be what differs. The office sought, and the role of the person asked, carry the analysis.
The risk also depends on who gives. The vast majority of elected judges serve with fairness and honor, but “[e]ven if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributions is likely to undermine the public’s confidence in the judiciary.”35 The risk is especially pronounced because most donors are lawyers and litigants who may appear before the judge they are supporting.36 A personal solicitation “inevitably places the solicited individuals in a position to fear retaliation if they fail to financially support that candidate,” and potential litigants then fear that the system has been compromised, because they are pushed to choose an attorney partly by who has made the obligatory contributions.37 A State’s decision to elect its judges does not require it to tolerate these risks.38
The State need not prove that any judge favored a donor. Public confidence in judicial integrity does not lend itself to proof by documentary record, yet no one denies that it is genuine and compelling.39 What led Florida and most other States to sever the direct link between candidates and contributors was the unavoidable appearance that judges who personally ask for money may diminish their integrity.40
Other courts have described the interest in similar terms. In a case about corporate election spending, the Montana Supreme Court relied on Caperton for the point that codes of judicial conduct serve to maintain the integrity of the judiciary and the rule of law, and it added that States have a compelling interest in preventing judicial activities that would undermine actual impartiality and its appearance.41 That case did not involve personal solicitation. It matters here because a second court drew the same account of the interest from the same source.
Two errors recur on exams. Answers that import the logic of political campaign-finance cases ask whether a gift corrupts an official who is supposed to respond to supporters, and so miss that the judicial interest rests on a different premise about what a judge is for. Answers that demand proof of actual favoritism miss that the interest lies in appearance and public confidence. Establishing the interest completes only half of strict scrutiny, and the next two sections test the fit.
Underinclusiveness
Yulee’s first attack on the fit ran in an unusual direction: she argued that Canon 7C(1) restricts too little speech.43 A candidate’s committee may solicit, she pointed out, which may lower public confidence in the judiciary as much as the candidate’s own request, and Florida lets candidates write thank-you notes to donors.44 Her premise was that a State cannot claim to protect confidence in judicial integrity while leaving open comparable ways of damaging it. The Court conceded that it is “always somewhat counterintuitive” to argue that a law violates the First Amendment by abridging too little speech, and then took the argument seriously, because the Court’s own cases give it a footing.45
Underinclusiveness can expose two different defects. The first is doubt about motive: a law that leaves comparable conduct alone can raise “doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.”46 In the textbook illustration, Church of Lukumi Babalu Aye, Inc. v. Hialeah, the Court invalidated a city’s ban on ritual animal sacrifices because the city failed to regulate vast swaths of conduct that similarly diminished its asserted interests in public health and animal welfare.47 Gaps that large suggested that the city was aiming at one practice and not at the harms it named. The second defect is ineffectiveness. In Smith v. Daily Mail Publishing Co., a State prohibited newspapers, but not electronic media, from releasing the names of juvenile defendants, and that choice suggested that the law did not advance its stated purpose of protecting youth privacy.48 A name that a broadcaster may still announce is no more private because a newspaper stays silent.
Even so, underinclusiveness is a warning and does not decide a case by itself. A law’s underinclusivity raises a red flag, the Court said, but the First Amendment imposes no freestanding “underinclusiveness limitation,” and a State need not address all aspects of a problem in one fell swoop.49 Policymakers may focus on their most pressing concerns, and the Court has upheld laws, even under strict scrutiny, that could have restricted even more speech.50 The alternative shows why. If a law were invalid whenever the legislature could have reached further, the only safe regulation would be a total one, and a State that wanted to address its worst problem first would have to choose between regulating everything and regulating nothing.
The useful question is whether the gap undercuts the interest, and the Court found no fatal gap in Canon 7C(1) for three reasons. The ban aims squarely at the conduct most likely to undermine public confidence in judicial integrity: personal requests for money by judges and judicial candidates. It applies evenhandedly to all judges and judicial candidates, regardless of viewpoint or chosen means of solicitation. And unlike some laws the Court has found impermissibly underinclusive, it is not riddled with exceptions; it contains zero exceptions to its ban on personal solicitation.51
Yulee leaned hardest on the committee clause, and the Court answered that personal solicitation by judicial candidates implicates a different problem than solicitation by a campaign committee.52 However similar the two requests may be in substance, a State may conclude that they present markedly different appearances to the public, so Florida’s choice to allow committee solicitation does not undermine its decision to ban solicitation by judges.53 The difference lies in who is asking. When a candidate asks, the person asked knows that the requester may one day decide that person’s case, and the request “inevitably places the solicited individuals in a position to fear retaliation” if they refuse.54 A committee volunteer who is refused has only been disappointed. A candidate who is refused may someday preside over the refuser’s case.
The thank-you-note argument fails for a related reason. The State’s compelling interest is implicated most directly by the candidate’s personal solicitation itself, so a failure to ban thank-you notes for contributions the candidate did not solicit does not undercut the Bar’s rationale.55 The Court added that Florida has a good reason for permitting both notes and committees: the accommodations reflect its effort to respect the First Amendment interests of candidates and contributors and to resolve the “fundamental tension between the ideal character of the judicial office and the real world of electoral politics.”56 A State that wished to suppress judicial campaigning would not have built them in.
The principal dissent pressed the objection from another side. It read the canon’s scope as evidence of hostility toward judicial campaigning and not of concern for appearances: the Florida court banned all personal appeals for campaign funds, even when the person asked could never appear before the candidate, but tolerated appeals for other kinds of funds, even when the person asked will surely appear before the candidate.57 The dissent also observed that the ABA, whose model rules Florida followed, opposes judicial elections.58
The majority answered with the accommodations themselves. They belie the suggestion that the canon reflects general hostility toward judicial campaigning and has nothing to do with the appearances created by judges’ asking for money.59 Taken to its logical conclusion, the position of Yulee and the principal dissent is that Florida may ban solicitation by judicial candidates only if it bans all solicitation of funds in judicial elections, and the First Amendment does not put a State to that all-or-nothing choice. The Court would not punish Florida for leaving open more avenues of expression rather than fewer, especially when nothing indicates that the selective restriction reflects a pretextual motive.60
The inquiry matters in this chapter because the campaign rules exist to protect the independence, integrity, and impartiality that Rule 4.2(A)(1) names, and a challenger who says a rule restricts too little is arguing that the State is not really protecting them.61 The Court’s answer is that a rule can aim at the gravest threat to those values, leave lesser ones for another day, and still be sincere. Exam answers err in two opposite ways. One treats any gap or accommodation as fatal, which ignores that no freestanding underinclusiveness limit exists. The other dismisses the argument, which ignores that the Court itself treated underinclusiveness as a red flag and pointed to laws with large gaps that failed.
Overbreadth and Alternatives
Yulee’s second tailoring argument reversed her first. The canon, she said, restricts too much speech, because it is not narrowly tailored to advance the State’s compelling interest through the least restrictive means.63 Narrow tailoring asks whether a restriction reaches only as far as the State’s goal requires, so a challenger who names a gentler rule that would do the same work shows that the restriction burdens more speech than necessary. The goal here is public confidence that judges decide cases on the law, which is the practical content of the independence, integrity, and impartiality that Rule 4.2(A)(1) tells every candidate to protect.64 The Court rejected the claim for three groups of reasons: the canon’s actual reach, the impossibility of the lines Yulee proposed, and the inadequacy of her alternatives.
The canon’s reach comes first, because the breadth of a restriction is the first measure of its fit. Canon 7C(1) leaves judicial candidates free to discuss any issue with any person at any time: they may write letters, give speeches, put up billboards, contact supporters in person, by phone, or online, and campaign on radio, television, and other media.65 The one thing a candidate may not say is “Please give me money,” and even that request may be made by a campaign committee.66 Measured against everything the canon permits, the Court said, it restricts a narrow slice of speech, and whatever else may be said of it, it is not a “wildly disproportionate restriction upon speech.”67 That answered the dissents, which had pictured a state censor that gags candidates and silences debate. The permissions taught earlier in this chapter point the same way: a candidate may speak through any medium and raise money through a committee, so the ban removes a single act from a broad field of campaign activity.
Yulee conceded that the canon is valid in many applications, and that narrowed her argument to one form of solicitation. She acknowledged that Florida can bar judges from soliciting money from lawyers and litigants who appear before them, and she suggested the State might also ban direct one-to-one solicitation of lawyers, individuals, or businesses that could reasonably appear in the court she sought.68 What she resisted was the canon’s application to her own method, a letter posted online and sent by mass mailing, on the theory that no one loses confidence in the judiciary because of a request sent to so broad an audience.69 The Court replied that the theory misjudges how far the interest runs. Florida has reasonably determined that personal appeals for money by a judicial candidate inherently create an appearance of impropriety that may cause the public to lose confidence in the integrity of the judiciary. That interest may be implicated to varying degrees in particular contexts, but it remains whenever the public perceives the judge personally asking for money.70 The signed letter Yulee mailed therefore falls inside the ban, while a letter requesting the same money over the committee’s name falls outside it. The harm lies in the candidate’s own request, which carries the same meaning to the public whether it reaches one lawyer or ten thousand households.
The Court’s second reply was that the lines Yulee wanted could not be drawn. On her own theory, a mass mailing would create an appearance of impropriety if it went to every lawyer and litigant with a pending case, and so would a speech soliciting contributions from the 100 most frequent appearing attorneys in the jurisdiction.71 Each concession invites a further question about where the exception ends. The Court asked whether the public impression differs when a candidate buttonholes two prospective donors instead of one, or ten, and whether concern would recede if the request came by phone call or text message.72 Every answer would require a judgment about what size or form of audience makes a request impersonal enough to be harmless, and neither the First Amendment nor public perception supplies a number. Candidates could not know in advance which solicitations were safe, and a disciplinary body would have to decide each case by guessing how the public might react. The Court declined to “wade into this swamp” and stated that the First Amendment requires that the canon be narrowly tailored, not that it be “perfectly tailored.”73
Perfect tailoring is out of reach because the State’s interest is as intangible as public confidence, which has no precise measure.74 The Court also gave weight to the fact that most States with elected judges have decided that a line between personal solicitation by candidates and solicitation by committees is necessary to preserve public confidence. Those considered judgments deserve respect, it said, because they reflect sensitive choices by States in an area central to their own governance: how to select those who sit as their judges.75
Yulee’s last argument was that Florida could protect its interest through less restrictive means, specifically recusal rules and contribution limits, and the Court rejected both.76 A rule requiring recusal in every case in which a lawyer or litigant made a campaign contribution would disable many jurisdictions, because most donors are lawyers and litigants who may appear before the judge they support. A flood of postelection recusal motions could also “erode public confidence in judicial impartiality,” which would aggravate the very appearance problem the State is trying to solve. The rule would create a perverse incentive as well: litigants could contribute to judges solely to trigger later recusal, a form of peremptory strike against a judge that would enable transparent forum shopping.77
Contribution limits were the second proposed alternative, and the Court’s answer began with a fact: Florida already limits contributions in judicial elections. Even if Florida lowered its limit, the appearance that judges who personally solicit funds might improperly favor their donors would remain.78 A limit controls how much any donor may give, but the appearance that the judge personally asked, and will remember who said yes, is the same for a small request as for a large one. Yulee’s own letter shows the point: every amount it requested was modest, and the request was still disciplined. The Court added that it has never held that adopting contribution limits precludes a State from pursuing its compelling interests through additional means, and that a State’s compelling interests in regulating judicial elections extend beyond its interests in regulating political elections, because judges are not politicians.79
The Court held that Canon 7C(1) is narrowly tailored to serve a compelling interest, so the First Amendment posed no obstacle to enforcing it against Yulee.80 Florida may continue to prohibit judicial candidates from personally soliciting campaign funds while allowing them to raise money through committees and to communicate their electoral messages in practically any way.81 The holding reaches only that rule. The Court closed by observing that judicial candidates have a First Amendment right to speak in support of their campaigns, that States have a compelling interest in public confidence in their judiciaries, and that a narrowly tailored restriction reconciles the two, because a State’s decision to elect judges “does not compel it to compromise public confidence in their integrity.”82
Three slips recur on this material. Some answers exempt mass mailings or broadcast appeals as harmless because the audience is large, which the Court rejected: the interest remains whenever the public perceives the judge personally asking for money, and audience-based lines cannot be administered. Others argue that recusal or contribution limits make the ban unnecessary, which overlooks that universal recusal would disable courts and invite forum shopping, and that limits leave the appearance of a personal request untouched. A third reading treats the decision as approving every restriction on candidate speech, although the Court upheld one narrow ban on personal solicitation.