A campaign finance victory, because judges are special

gavelAn unusual coalition of five Justices — Chief Justice John Roberts and the Court’s four liberal Justices – agreed on one kind of speech that the government can ban:  personal solicitations of campaign contributions by people running for judgeships.

Lyle Denniston at SCOTUSblog provides an Opinion analysis: A modest restraint on campaign fund-raising:

Although the majority left wide options for judicial candidates to obtain funds near election time, and even to thank the donors, the ruling drew deeply pained protests from four dissenters that the Court was seriously undercutting the First Amendment in the campaign realm.

What clearly made the difference, in this break from a string of First Amendment rulings protecting big money in politics, was that this was about judicial elections and the majority was worried that asking directly for money by a would-be judge was a serious threat to judicial integrity. By assigning the main opinion to himself, as the nation’s highest-ranking judge, Chief Justice John G. Roberts, Jr., gave the ruling something of the stature of a national judicial policy declaration.

At issue in the case of Williams-Yulee v. Florida Bar was a state ethical rule that no candidate for a state judicial office may personally ask anyone for a campaign contribution — whether the person contacted was a lawyer, a friend, or even a family member.  That, the Chief Justice wrote, is sufficiently related to a state’s interest in impartial courts that it is permissible under the First Amendment.

“When the state adopts a narrowly tailored restriction like the one at issue here,” Roberts’s opinion said, the right of judicial candidates to speak and the interest of the state in protecting the public reputation of the judiciary “do not conflict.  A state’s decision to elect judges does not compel it to compromise public confidence in their integrity.”

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The decision made clear, through the support of four Justices who were part of the majority and four Justices who were in dissent, that any restriction on what candidates for elective office — including those seeking judgeships — may say in reaching out to voters must pass the most demanding constitutional test (“strict scrutiny”).  Only Justice Ruth Bader Ginsburg would not go along with that standard, arguing that states should have more leeway in putting limits on the financing of judicial elections.

The actual result in the case — upholding the Florida ban on personal solicitation — was supported by the Chief Justice and Justices Ginsburg, Stephen G. Breyer, Elena Kagan, and Sonia Sotomayor.

There were three dissenting opinions: by Justice Antonin Scalia, joined by Justice Clarence Thomas, by Justice Anthony M. Kennedy, and by Justice Samuel A. Alito, Jr.

The Scalia dissent . . . tartly accused the majority of pretending to remain neutral on the mode of selecting judges, saying that the majority “does not much like judicial elections by the people.”

Here is the opinion in Williams-Yulee v. Florida Bar (.pdf).

Rick Hasen at Election Law Blog has more Analysis: #SCOTUS Upholds Ban on Judicial Candidates Personally Soliciting Campaign Contributions.

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