Wednesday, April 29, 2015

Williams-Yulee in Comparative Perspective

Today's decision in Williams-Yulee v. The Florida Bar was something of a surprise.  At issue was Florida's bar on direct solicitation of campaign contributions by judicial candidates, a restriction similar to that adopted by a majority of states.  Williams-Yulee, a first-time candidate for judicial office, argued that the ban violated her First Amendment rights.  The Florida Bar countered that the restriction was necessary to both the appearance and reality of judicial integrity.  Before the Court that decided Citizens United, the answer seemed pre-ordained.

Yet given the issue, the oral argument in January had an unusually personal cast.  Justices Sotomayor and Breyer testified to their own experiences of the subtle coercion when asking lawyers "can you please" do something.  "'Yes.  That's the answer," said Justice Breyer.   It's "very, very, very rare," said Justice Sotomayor, that a lawyer turns her down.  On the other side, Chief Justice Roberts imagined calling his college classmate and asking for a campaign donation:  "No one would say there is a real risk of corruption because he's calling up his old friends," he asserted.

Chief Justice Roberts was a critical vote for the Florida Bar's position, but in this case, the old litigator's adage that you can't predict the result based on the oral argument held true.  Chief Justice Roberts wrote today's opinion citing, among other things, the Magna Carta's promise that "to no one will we sell . . . justice."  Judicial candidates are different than other candidates, he concluded, and the importance of judicial integrity justifies the Florida Bar's restriction on judicial speech even under strict scrutiny.

One of the many amici participating in the case was the Carter Center (NB. I served as one of the counsel on the Carter Center brief), known worldwide for its monitoring of democratic elections and its activities to promote human rights and the rule of law.

Putting the Florida Bar restrictions into perspective, the Carter Center argued that:

    "Neither the importance nor the challenge of securing an effective and independent judiciary is a
    uniquely American phenomenon. For decades, international and regional organizations have     focused on codifying principles and standards of judicial conduct, designed to improve the     confidence of citizens in the tribunals of their nations. These documents make clear that     promoting judicial impartiality—and, importantly, the appearance of judicial impartiality—
    are core interests of governments."

The Carter Center brief attested to the fact that judicial integrity cannot be taken for granted in the U.S. or anywhere and is, in fact, hard won through mechanisms -- found across nations -- that hold judges to high standards of conduct for the public good.  While the U.S. continues to be exceptional in conducting judicial elections at the state level, today's decision recognizes that we share with other nations the imperative to ensure public confidence in the administration of justice, and that modest limitations on judicial campaign solicitations are a small price to pay for preserving that confidence.

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