The Blind Justice Debate
Welcome to 2015 — the year in which the United States Supreme Court will rule on a case potentially just as big as Citizens United. And much like that reviled ruling, few will know of it in advance — outside of court watchers, political junkies and the occasional scholarly types. This new case hasn’t been widely, or even narrowly covered by the media, yet it potentially will drag the nation’s entire judiciary into the unfettered corruption of craven monetized interests found in the murky world of Citizens United.
So, take a moment here to brush up on the who, what and why of this pending high court decision. It’s poised to deliver deep repercussions impacting the integrity of our core democratic principles — something worth knowing about in advance.
Williams-Yulee v. The Florida Bar presents far-reaching ramifications for campaign finance ethics within the nation’s judiciary — the one branch of government which, to varying degrees, remains insulated from much of the direct corruption of the monied few.
Under current rules found in 30 of the 39 states that use elections for selecting judges, Michigan included, judicial candidates are strictly forbidden from personally soliciting direct campaign contributions — all fund-raising must be conducted indirectly through a campaign committee. Michigan takes it a step further, prohibiting candidates from even directly seeking political endorsements.
(Before we go any further, let’s dispense with the false argument that this is all but meaningless in the face of the overwhelming influence of third-party issue ads — dark money, that often goes unreported. The problem is particularly acute in Michigan where judicial races are dominated by so many shadowy contributors. The compelling reason to keep this restriction on judicial campaign conduct in force is both principled and practical. It is simply incorrect to believe that all third-party advocacy is necessarily welcomed by judicial candidates, or that implicit quid-pro-quo exists in abundance. Therefore, maintaining the barrier acts as a protection for judicial impartiality, albeit a flawed one.)
Justice on the Take
The U. S. Supreme Court will hear oral arguments for the Florida case on January 20th. The plaintiff is making a constitutional challenge to these kinds of rules, which are typically imposed through state bar associations for the purpose of preserving public confidence in the courts.
The case stems from the failed candidacy of Lanell Williams-Yulee who, after losing her bid for a county judge seat, was publicly reprimanded and ordered to pay a fine for violating Canon 7c(1) of the Florida Judicial Code of Conduct which stipulates that a candidate “for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds.” In the course of the campaign, Williams-Yulee had signed a letter sent to voters in which she personally solicited campaign contributions. Citing First Amendment protections, she challenged the bar association’s finding, yet the Florida Supreme Court ruled against her.
Subsequently, the plaintiff filed a petition with the U.S. Supreme Court, which the Florida Bar opted not to challenge, instead seeking a high court clarification because lower courts had so muddied the waters with multiple conflicting opinions making the correct legal path increasingly unclear. Judicial ambiguity demands clarity, much as was the case with the unfortunate Citizens United ruling.
The Brennan Center for Justice describes the mixed rulings on judicial campaign conduct:
At the federal level, the Third and Seventh Circuits have upheld these regulations against First Amendment challenges, as have the highest state courts of Arkansas, Florida, Maine, and Oregon. In contrast, the Sixth, Eighth, Ninth, and Eleventh Circuits have found that, at least in some circumstances, these restrictions on judicial campaign solicitation may violate candidates’ First Amendment rights.
Michigan, operates in the Sixth Circuit Court, so precedent there is in favor of relaxed regulations.
Although the Florida Bar is taking a pass on this, allowing the high court to rule what they may, many respected organizations are unanimous in condemning the further erosion of judicial trust and integrity, not to mention the utter break-down in our nation’s campaign finance ethics. An amicus brief was filed on behalf of the Brennan Center for Justice, the Campaign Legal Center, Justice at Stake, Common Cause, the Center for Media and Democracy, and a number of other parties interested in persuading the court to uphold the Florida court ruling.
Bert Brandenburg, Executive Director of the non-partisan judicial watchdog group Justice at Stake, describes the importance of this case:
“Our courts are different from the other two branches of government. If money influences what a legislator or a governor does, it reeks. But if campaign money influences a decision in the courtroom, it violates the Constitution. And when would-be judges ask directly for money from lawyers and special interests who may later appear before them, it fuels the perception of justice on the take.”
The Justice at Stake press release points out that “Florida’s rule in no way inhibits judicial candidates from communicating about their fitness for office or speaking on issues of public concern. The rule thus protects a vital interest in judicial impartiality while imposing only a minor restriction on the conduct of judicial candidates.”
Michigan’s Judicial Code of Conduct contains a rule that is, for legal purposes, the same as Florida’s, so the ruling could impact that state’s already tarnished record of judicial campaign integrity.
Edited Jan. 10, 2015 to correct the number of courts with similar rules from 29 to 30.