In Williams-Yulee, a Good Outcome, But Some Bad Stuff, Too

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By Mark Wilson, Esq. on May 01, 2015 12:53 PM

The 5-4 opinion in Williams-Yulee v. Florida Bar was a bit of a surprise. Chief Justice Roberts sided with the Court's four liberals to conclude that a state canon of judicial ethics prohibiting judicial candidates from personally soliciting campaign donations was constitutional.

What made more sense is that Justice Kennedy, the author of the Court's opinion in Citizens United v. FEC, dissented from this judgment. It's clear that Roberts made the right call, but his reasoning leaves something to be desired, and indeed, carries some weighty implications for future free speech decisions.

Different Strokes for Different Folks

Roberts comes out swinging with the key to understanding why Williams-Yulee is different from Citizens United or McCutcheon v. FEC. Those cases dealt with the so-called political branches of government, which, to some extent are designed to respond to the whims of constituents. Judges, though, are different; they expressly can't favor one side over another. As a result, the government interests are a little different.

In his dissent, Kennedy constructs such a Jeremiad, you'd think Roberts just sanctioned killing puppies. He characterizes the Court's ruling as a "denial of the individual's right to
speak, "cutting off one candidate's personal freedom to speak," and "state censorship."

Of course, that's all histrionic nonsense, which Roberts ably points out, and makes sense only if you willfully misinterpret what the Court is saying. Far from creating a gulag-type totalitarian dystopia where free speech is stamped out by the boot of a goose-stepping fascist, the Court's opinion regulates one manner of speech: Personal solicitations by judicial candidates. Roberts observes that candidates are free to do many other things: "Candidates can write letters, give speeches, and put up billboards. They can contact potential supporters in person, on the phone, or online. They can promote their campaigns on radio, television, or other media. They cannot say, 'Please give me money.'"

Just Call Him 'The Manichean'

The Court's opinion represents the kind of pragmatism markedly absent from Citizens United, in which Kennedy famously concluded -- with no evidentiary support -- that allowing corporations to spend unlimited amounts of money in political campaigns doesn't lead to "corruption or the appearance of corruption."

To Kennedy, the government may regulate exactly one thing when it comes to electoral speech, and that's so-called quid pro quo corruption. Unless the donor literally hands the candidate a check and says, "Now, understand that if I give you this money for your campaign, you will reciprocate by voting the way I want you to on a certain issue," the government can't regulate the speech. Essentially, only bribery can be regulated. Anything short of that is free speech.

That definition is intentionally limiting. Companies don't buy votes outright like that anymore. They buy influence, which is a fuzzier concept, but one that's far more relevant.

And for Kennedy, judicial candidates are the same as legislative ones when it comes to speech, corruption, and "the appearance of corruption." As Roberts points out, however, a judge takes an oath to be impartial, and unlike the definition of marriage -- which has been in flux for "millennia" -- judges since the middle ages have taken an oath to be impartial.

Roberts, as the Court's chief justice, is only too aware of how much public perceptions of the judiciary matter. It's widely believed that he changed his mind on NFIB v. Sebelius because otherwise, the Court would have suffered a public credibility hit. Roberts has to deal with this. Kennedy doesn't; he can wax poetic about freedom then and fly off to Europe to teach law every summer, but Roberts must worry about the Court's legitimacy as an institution.

'Wibbly Wobbly, Timey Wimey ... Stuff'

Where Roberts flounders is in his attempt to find that the law passes strict scrutiny, the most restrictive of the constitutional tests. It's true that the state's interest in regulating judicial elections is different from its interest in regulating elections in the political branches, but no one disputes that preventing corruption is a compelling state interest.

The problem comes when Roberts finds that the Florida Bar's method is narrowly tailored. Here, he creates problems that will potentially benefit defendants of free speech lawsuits by giving narrow tailoring a little more wiggle room. "A State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns," he writes, addressing the argument that the law is underinclusive because it doesn't regulate activities, like solicitations from a judge's campaign committee or writing personal thank-you notes to donors, that also cast doubt on the judiciary's impartiality.

But First Amendment cases can live or die based on statutes being underinclusive or overinclusive. Take this recent case from the Sixth Circuit holding unconstitutional a Michigan city's law banning unattended charitable donation bins. Part of the Sixth Circuit's reason for striking the law is that it doesn't do what it claimed to do: The City of St. Johns said that the bins attracted a buildup of trash, but the court wondered why that wouldn't also be the case for unattended commercial receptacles, too.

An appellate lawyer tasked with supporting the City of St. Johns finds an easy solution in Roberts' opinion: "[P]ersonal solicitation by judicial candidates implicates a different problem than solicitation by campaign committees. ... Florida's choice to allow solicitation by campaign committees does not undermine its decision to ban solicitation by judges."

The same thing would go for those donation bins: "Hey, plaintiffs, we're addressing the problem of detritus next to charitable receptacles. Detritus next to commercial receptacles 'implicates a different problem.' Our choice to allow commercial bins 'does not undermine [our] decision to ban' charitable ones."

Whether that argument will work is a question for whichever judge has to read it, but the idea is out there now. Perhaps this all speaks to a larger conclusion, not before the Court, which is that electing judges is just a bad idea in the first place.

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