Mark Ferrulo: Ruling on judicial campaigns underscores need for fair, impartial courts

Last week the U.S. Supreme Court rendered a decision in Williams-Yulee v. The Florida Bar that will impact future judicial campaigns across the country. The court upheld a Florida rule that helps keep courts fair and impartial by prohibiting judicial candidates from personally soliciting campaign contributions.

This means that the highest court in the land affirmed that money in judicial races can have a corrosive impact on the justice system and our courts. Floridians have already seen major attempts to hijack our courts with big money. In 2012, the billionaire Koch Brothers tried to unseat three Florida Supreme Court justices. That year, the Republican Party of Florida and the Kochs actively campaigned to oust three judges in response to their having ruled against an effort by the Republican-controlled Florida legislature to block Obamacare.

Every six years Florida Supreme Court justices appear on the ballot as part of Florida’s “merit retention” system, which gives Floridians an up-or-down vote on whether the justices should remain on the bench. Votes for merit retention were adopted in the 1970s in response to a series of political scandals with the goal of reducing politicization of the judiciary, and are widely considered to have been a success.

That started to change in 2010 after the Florida Supreme Court ruled against an effort by Florida Republicans to place a “misleading and ambiguous” amendment on the ballot designed to block the implementation of Obamacare. GOP leaders attacked the ruling and then made the unprecedented move of publicly opposing the retention votes for those justices on the majority side of the 5-2 decision. In 2010, two of those justices were retained by voters, and then in 2012, when the remaining three were up for retention, the billionaire Koch Brothers joined the fray. They launched a multi-million dollar campaign featuring television ads across the state through their Florida-based front group, Americans for Prosperity.

The justices were forced to hit the fundraising trail, and outside groups spent millions in their defense. If the Kochs’ campaign had been successful, longtime critic of Obamacare Gov. Rick Scott would have appointed replacements for the ousted trio. In the end, Floridians voted to retain all three.

Veteran Florida political observer Carl Hiaasen described the Kochs’ motivations: “The last thing these guys want is fair judges who know the law; they want partisan judges who’ll obediently support their political agenda. It’s worse than just trying to buy an election. It’s trying to hijack Florida’s justice system at the highest levels.

As Chief Justice Roberts penned in last week’s majority decision, “judges are not politicians.” Although Florida uses merit retention to select appellate judges, our trial court judges are elected in nonpartisan races, in some ways forcing them to be politicians. Direct election at the trial court level leaves the system open to more fundraising and spending from special interests and lawyers, which makes this latest ruling upholding bans on the direct solicitation of funds even more necessary.

A fair and impartial jury is a cornerstone of our democracy, and this decision by the U.S. Supreme Court is a meaningful step in the right direction to helping us ensure access to justice in our courts.

Florida needs reasonable restrictions on judicial campaign conduct to protect our courts from special interest influence and ensure the public that justice in Florida is not for sale to the highest bidder.

Mark Ferrulo is executive director of Progress Florida. Column courtesy of Context Florida.

Mark Ferrulo


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