The U.S. Supreme Court is taking up the question whether candidates running for judicial office should be permitted to directly solicit campaign contributions. The Court has heard arguments in Williams-Yulee v. The Florida Bar, in which the petitioner was reprimanded by the Florida Supreme Court for having sent out solicitation letters. She has appealed, and the Court has heard arguments. Retired Judge Eugene Hyman discusses the problems presented in this report.
The central question in this case is whether Florida’s restriction on the fund-raising activities of judicial candidates is a lawful infringement on their right to free speech. If the Court strikes down the Florida restriction, it could affect similar provisions in 29 other states. Judge Hyman notes that he has been on both sides of the election issue, having been an appointed judge and later and elected judge who had to stand for reelection.
Judge Hyman agrees with comments by Justice Sotomayor during oral argument that it is very hard for a lawyer to say “no” to a judge, whether it’s a request to serve on a committee or to give money. The Florida regulation allows judges to have committees that perform direct solicitation. Under Florida law, a judge may know who is contributing (and how much) and may write thank you letters to contributors. And, of course, anyone who makes a contribution in virtually any state will be in a database showing names of contributors and names of recipients. A prospective client might decide to seek out a lawyer who made a generous contribution to a judge on the theory that the lawyer would have an inside track with the judge.
Judge Hyman says that it is awkward asking lawyers for campaign contributions. It is reasonable to assume that lawyers will make the bulk of the contributions because they are interested in courts. Judge Hyman, confronting the issue, would recuse himself for two years in cases involving a lawyer who gave $250 or more and, in the case of lawyers who gave $1,000 or more, would recuse himself throughout his time on the bench. It is important for judges to avoid the appearance of evil.
The free speech aspect of this case is important because of previous Supreme Court rulings that giving political contributions is a form of free speech, and strict scrutiny will be applied to any restriction on that freedom. For example, the Court has ruled that limits on the amounts of contributions infringe on free speech. The issue in this case is not on donation limits, but whether candidates can solicit themselves. Judge Hyman is inclined to think that the Court will decide judicial elections are not like most other elections and will uphold the Florida rule.
Honorable Judge Eugene Hyman has received numerous awards and recognition for his work with families and children and has appeared on numerous television news shows. For more information, visit www.judgehyman.com. He is also a featured commentator on The Family Law Channel and The Legal Broadcast Network. The Legal Broadcast Network is a featured network of the Sequence Media Group.