Campaign Fundraising Compared

Campaign Fundraising Compared

Most of this chapter concerns a judge who lends a name or a voice to someone else's cause. Rule 3.7(A) lets a judge take part in activities of organizations concerned with the law, the legal system, or the administration of justice, and of nonprofit educational, religious, charitable, fraternal, or civic organizations, subject to Rule 3.1.¹ A judge who must win an election faces a different fundraising problem, which is paying for the judge's own campaign, and the rules for judicial candidates govern that problem. The leading decision is Williams-Yulee v. Florida State Bar, in which the Court let Florida keep barring judicial candidates from personally soliciting campaign funds while allowing them to raise money through committees.² Both regimes worry about what the public thinks when a judge personally asks for money, and that shared worry tempts students to merge them. Keeping them apart requires knowing what the case held, why the Court reached that result, and where its reasoning stops.

Canon 7C(1) of the Florida code forbids a candidate for a judicial office filled by public election between competing candidates, an incumbent judge included, to “personally solicit campaign funds, or solicit attorneys for publicly stated support.” The candidate may, however, establish committees of responsible persons to secure and manage the expenditure of funds and to obtain public statements of support.³ Florida is not an outlier. 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).⁴

Yulee admitted that she had signed and sent a fundraising letter, but she argued that the First Amendment protects a judicial candidate's right to solicit campaign funds.⁵ A referee recommended a finding of guilt, a public reprimand, and costs of $1,860, and the Florida Supreme Court adopted those recommendations.⁶ That court reasoned that the canon “clearly restricts a judicial candidate's speech,” so it had to be narrowly tailored to serve a compelling state interest, and it held that the canon met that demanding test.⁷

The Supreme Court affirmed. The parties agreed that the canon restricts speech on the basis of its content and disagreed only about the level of scrutiny.⁸ The Court asked whether the canon is narrowly tailored to serve a compelling government interest. It described that task as demanding, since a state rarely carries the burden, and it concluded that Florida carried it.⁹ Chief Justice Roberts delivered the opinion of the Court except as to Part II. Justices Breyer, Sotomayor, and Kagan joined it in full, and Justice Ginsburg joined all but Part II. Justice Scalia, joined by Justice Thomas, and Justices Kennedy and Alito dissented in separate opinions.¹⁰

Florida described its compelling interest as “preserving the integrity of [its] judiciary and maintaining the public's confidence in an impartial judiciary.”¹¹ The Court found the link between the canon and that interest intuitive. Judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity, a principle that dates back at least to Magna Carta’s promise, “To no one will we sell, to no one will we refuse or delay, right or justice.”¹²

A judge differs from a politician in the way that matters most here. A politician is expected to be responsive to supporters, but a judge deciding cases may not follow supporters' preferences or give special consideration to campaign donors, so precedents applying the First Amendment to political elections have little bearing.¹³ The Court did not rest on any claim that elected judges behave badly. The vast majority serve with fairness and honor, yet the public may see a candidate's personal solicitation as a possible temptation, even an unknowing one, and the risk is greatest where most donors are lawyers and litigants who may appear before the judge they support.¹⁴

The committee option shows how the canon is tailored. What prompted Florida and most other states to act was the appearance that judges who personally ask for money may diminish their integrity, and their response was to sever the direct link between judicial candidates and campaign contributors.¹⁵ A committee lets the candidate fund a campaign without making the personal ask. The Florida court said the canon insulates candidates from the solicitation and receipt of funds while leaving open ample alternative means of raising the resources needed to run a campaign.¹⁶ The Supreme Court added that, under its decision, Florida may let candidates communicate their electoral messages in practically any way.¹⁷ The same reasoning explains thank-you notes. The state's interest is implicated most directly by the personal solicitation itself, so letting a candidate thank donors who gave without being asked by the candidate does not undercut the ban.¹⁸

Yulee's letter went out as a mass mailing, and that did not take it outside the ban. The Florida court reasoned that personal solicitation, “even by mass mailing,” raises an appearance of impropriety and calls the judge's impartiality into question in the public's mind.¹⁹ Contribution limits were no substitute either. Florida already applies them to judicial elections, but a state may decide that the threat to public confidence exists apart from the amount a candidate seeks, and even a lower limit would leave the appearance that judges who personally solicit may favor their donors. The Court had never held that adopting contribution limits bars a state from pursuing its compelling interests through additional means.²⁰

The decision is narrower than it first looks. It upheld one canon, the ban on a candidate's personal solicitation of campaign funds, against a First Amendment challenge, and the principal dissent faulted the Court for leaving unanswered broader questions, such as whether Florida may cap a judicial candidate's spending or ban independent expenditures by corporations.²¹ It also arose under a canon about a candidate's own campaign money, so it does not itself say how a judge may ask for money on behalf of an outside organization. That question belongs to Rule 3.7 and the fundraising limits covered earlier in this chapter. The two regimes differ in two ways that matter on an exam:

• The first difference is whose money is at stake. The campaign canon concerns the candidate's own campaign funds, and its substitute for the personal ask is the committee.²² Rule 3.7 concerns activities sponsored by a qualifying organization, and when an event serves a fundraising purpose the judge may take part only if the event concerns the law, the legal system, or the administration of justice.²³
• The second difference is who is covered. The campaign canon reaches only a candidate, an incumbent included, for a judicial office filled by public election between competing candidates, so a judge who is not running in such an election is outside it.²⁴ Rule 3.7 can apply to any judge who takes part in a qualifying organization's activities.²⁵

The usual error is to carry the committee exception from campaign money into charity, on the assumption that an intermediary cures a personal ask for a good cause. A problem that describes a judge asking for money is best sorted by purpose before any rule is applied.