President Trump’s 2017 inauguration isn’t the only event with an anniversary coming on January 20. On January 20, 2015, the Supreme Court heard oral argument in Williams-Yulee v. The Florida Bar, an important case on judicial fundraising and preserving public confidence in the integrity of the judiciary. And unlike Citizens United, which will have its seven-year anniversary on January 21, it was a rare Roberts Court victory for a campaign finance law.
In most states, at least some judges are elected, and those elections cost money. That can present problems, because candidates for judicial office tend to raise money from people and companies they will see in court: lawyers and frequent litigants. For this reason, Florida, like many other states, prohibits judicial candidates from personally soliciting campaign funds. This hardly solves the problem, but at least it prevents the most sordid types of judicial fundraising.
In Williams-Yulee, a judicial candidate claimed that it violated her First Amendment right to freedom of speech. Free Speech For People submitted an amicus brief, along with retired Montana Supreme Court Justice James Nelson (a member of our Legal Advisory Committee), arguing that states have a compelling interest in protecting the dignity of the judiciary. From smooth functioning of everyday courtroom matters, to literal life-and-death decisions, to public acceptance of controversial legal judgments, our legal system depends on respect for judges and courts, and states already discipline judges and judicial candidates for failure to “maintain the dignity appropriate to judicial office” in many contexts. We argued that Florida could properly determine that it is undignified for sitting or aspiring judges to personally solicit donations, and that the spectacle of them doing so could lead to a loss of respect for the judiciary. The personal solicitation prohibition is a carefully crafted solution that enables judicial candidates to raise sufficient campaign funds through their campaign committees, without soiling the dignity of judicial office in the process.
The January 20 argument (which you can listen to here) was spirited. The late Justice Scalia took note of our argument, and it even seemed for a bit that he might agree with us. (Such was not to be.) But ultimately, the Supreme Court ruled 5-4 to uphold that limit, in an opinion by Chief Justice Roberts, who wrote about the state’s compelling interest in “preserving public confidence in the integrity of its judiciary.”
So what’s happened since then? According to a study by the Brennan Center for Justice, the costs of judicial elections have increased even further. But as we wrote in U.S. News and World Report one year after the decision, there are new opportunities to protect the courts from the influence and agendas of campaign donors to judicial elections. One critical tool will be ending super PACs, which Free Speech For People is pursuing through groundbreaking federal litigation and innovative local government reforms.
Yet “preserving public confidence in the integrity of the judiciary” is not just about judicial elections spending. It also means that presidents should not describe a federal judge as a “so-called judge,” nor nominate as federal judges candidates with zero court experience, like Federal Election Commissioner Matthew Petersen–whose nomination we opposed, and who later withdrew his nomination after struggling to answer basic questions. It also means that Supreme Court Justices should not be giving speeches at hotels owned by a sitting president, and it’s why we’ve asked Chief Justice Roberts to investigate whether Justice Gorsuch committed an ethics violation by giving a speech at President Trump’s hotel in Washington, D.C. In our letter to Chief Justice Roberts, we quoted what he wrote in Williams-Yulee about the importance of preserving public confidence in the integrity of the judiciary.
So much has changed since January 2015. But the role of the courts, and the importance of preserving public confidence in the integrity of the judiciary, is more important than ever.