In Williams-Yulee v. Florida Bar, the Court, 5-4, upheld a Florida bar rule prohibiting judicial candidates from personally soliciting campaign funds. Florida, of course, elects judges. A plurality applied strict scrutiny but upheld the ban because the state had a compelling interest – preserving the integrity and perception of integrity of judges – and concluded that the ban was narrowly tailored to accomplish that end. The Court left no doubt that judicial candidates are not ordinary politicians, and that regulation of campaign finance in judicial elections might survive strict scrutiny. But how strict was this scrutiny? However indeterminate the process of identifying compelling interests may be, I agree that preservation of an impartial and incorruptible judiciary is an objective of the highest order, and I agree that states may take prophylactic actions to ensure that the public’s perception of the judiciary is that it is impartial and incorruptible.
I part company with the majority when it comes to narrow tailoring. Consider what the Florida rule permits: personalized thank-you notes from judicial candidates to donors, formation of campaign committees to raise money for the candidate, personal conversations between candidates and donors (so long as there is never a request for money), and disclosure of the identity of donors to the candidate. It strains credulity to think that a ban only on the person-to-person request for funds will have any material impact on either the perception or the actuality of judicial integrity. By saying, in essence, that Florida could take “one step at a time” the majority disposed of narrow tailoring and substituted a close kin of rational relationship.
On the facts of the case, Williams-Yulee was apparently an amateur campaigner, as she asked for funds from family, friends and associates. Yet, a professional campaign could organize a committee, raising tons of cash, tell the candidate who ponied up and who didn’t, and thus present a greater risk to judicial integrity than Willams-Yulee’s effort.
I’m not a fan of judicial elections, but diluting strict scrutiny in free speech poses a greater threat to democracy than does either judicial elections or raising campaign funds for judicial elections.