Martin Dyckman
If you need to go to court, do you want the judge wondering, as a politician might, why your lawyer didn’t contribute to her campaign? Or didn’t give enough?
That’s the crux of a Florida case to be argued at the U.S. Supreme Court on January 20.
Yanell Williams-Yulee, a Tampa lawyer, is appealing a reprimand and $1,860 in court costs ordered by the Florida Supreme Court for having personally signed a mass-mailing and web page that solicited contributions to her unsuccessful 2010 campaign for Hillsborough County judge.
Florida’s Code of Judicial Conduct recognizes that elected judges need to campaign but requires them to delegate the seamiest part–the fund-raising–to their supporters.
That serves several purposes. It puts some distance between the judge and the contributor. It takes some pressure off the potential donors. Most importantly, perhaps, it symbolizes that judges are supposed to care only for upholding the law rather than grubbing for dollars and votes.
But to Williams-Yulee and her supporters, the issue is freedom of speech, cut from the same stained cloth as the high court’s dreadful decisions in Citizens United and other cases that have stretched the First Amendment far beyond common sense.
As a lifelong journalist, I owe my career to the First Amendment. But no constitutional right is absolute. I don’t have the right to sit in on a jury’s deliberation, tap a politician’s telephone, commit libel, or as Justice Oliver Wendell Holmes Jr., famously pointed out, falsely cry fire in a crowded theater.
That’s why Florida and 29 of the 38 other states that elect judges prohibit them from personally soliciting campaign contributions. They have chosen, intelligently, to weigh the freedom to campaign against the public’s inherent and expressed rights to unbiased justice, due process, and equal protection of the laws. Florida’s Constitution adds that the courts “shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” (Emphasis supplied)
The forthcoming argument has enormous national implications. The 10 friend-of-the-court briefs supporting the Florida Bar represent, among others, 11 other states and the American Bar Association.
If Florida loses, yet another shield of honest government will be sacrificed to the false god that “money is speech.” The nonpartisan nature of Florida’s–and other state judiciaries–would surely be the next reform targeted.
Three former Florida Supreme Court justices and nine prominent Florida lawyers — four of them former Florida Bar presidents — have submitted their own brief to the court, to make the point that Florida has “an especially compelling governmental interest in preserving the integrity of its judiciary…”
Florida, the brief argues, is “only one generation removed from some of the worst judicial corruption scandals in our state’s (and nation’s) history.”
The brief, based in part on a book and two articles of mine on the subject, recites how Justice David McCain tampered with a lower court on behalf of three criminal defendants who were campaign supporters, how two other justices accepted a secret draft opinion from a lawyer involved in a major utility rate case, how one of them also tried to fix a civil trial involving a man who had volunteered in his campaign, and how Chief Justice Vassar Carlton resigned after a Las Vegas junket reportedly financed by a race track with a case in his court. A decade later, in the 1980s, a massive federal probe convicted three Dade County circuit judges, two former judges, and seven other persons of fixing criminal cases.
Williams-Yulee argues that improper influence can be controlled by asking judges to disqualify themselves from cases involving campaign supporters. But recusal–the legal term–is an unreliable remedy. In Caperton v. Massey (2009), the U.S. Supreme Court barely agreed (by only one vote) that a West Virginia justice should have stepped aside from a case involving a man who had spent $3 million to elect him. The dissent by Chief Justice John Roberts was particularly caustic.
Justice Anthony Kennedy was the deciding vote in that case, a role he’ll probably reprise this month. But his overall record on campaign finance is discouraging.
None of the present nine ever held, much less ran for, elected office. They have no personal insight into the ethical implications of campaign financing. The court lost the benefit of that sort of practical experience when Justice Sandra Day O’Connor retired eight years ago. At least please let them listen to what Florida is trying to tell them.
Martin Dyckman is a retired associate editor of the St. Petersburg Times. He is the author of A Most Disorderly Court: Scandal and Reform in the Florida Judiciary. He lives near Waynesville, N.C. Column courtesy of Context Florida.
