Friday, February 20, 2015

Williams-Yulee and Francis Bacon

Sir Francis Bacon, justly famous as the father of the scientific method, is less often remembered for his service and disgrace as a judge. In 1621 he was forced to resign from his position as Lord Chancellor of England after he shamefully confessed that he had accepted "gifts" from the parties who appeared before his court, although he denied that these gifts ever influenced his judgment. In his defense many historians contend that it was common practice for litigants in those days to make "contributions" to the judges who presided over their cases.

We have the same problem with "gifts" to judges, do we not? We call them "campaign contributions." Later this year in Williams-Yulee v. The Florida Bar the United States Supreme Court will decide whether the law can prohibit judges from personally soliciting campaign contributions when running for office.

Lanell Williams-Yulee ran for County Court Judge in Hillsborough County, Florida. To kick off her campaign she posted a mass mailing to voters soliciting donations. This was a direct violation of the Florida Code of Judicial Ethics; Canon 7C(1) provides that judicial candidates
shall not personally solicit campaign funds, or solicit attorneys for publicly stated support. 
Instead, candidates for judicial office may
establish committees of responsible persons [who] are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law.
The Florida Supreme Court found Williams-Yulee guilty of violating Canon 7C(1) and publicly reprimanded her. She appealed to the United States Supreme Court on the ground that the law violates her First Amendment right to freedom of expression.

The petitioner's constitutional  framework is straightforward. She correctly observes that Canon 7C(1) is a content based law regulating political speech, and as such it is subject to strict scrutiny.

Her first set of arguments strike this reviewer as counterproductive. Williams-Yulee contends that Canon7C(1) does not go far enough in preventing corruption! She points out that the law prohibiting personal solicitations only applies to judicial candidates, and not to all persons seeking public office, and that it does not prevent judicial candidates from learning "who gave generously and who balked" when contacted by the committee. (Brief, at p. 18) This seems particularly unpersuasive; it presumes that the Judicial Canon does not restrict speech as much as other laws that might be adopted to combat corruption, and practically invites the Court to uphold the Canon as a well-intentioned but harmless halfway measure.

Her second set of arguments are somewhat more promising. She contends that the law is too restrictive of speech because it applies to mass mailings as well as individual appeals and because it applies to written solicitations as well as in-person requests. But this argument, too, suffers from the fact that it implicitly concedes that the law could prohibit oral, in-person requests for contributions -- a fact that Justice Ruth Bader Ginsburg immediate jumped on in oral argument, wringing a concession from which Ms. Williams-Yulee's attorney never recovered. (Oral Argument, at p. 4)

Williams-Yulee's best hope for striking down Canon 7C(1) lies in the recent spate of campaign finance cases like Citizens United v. F.E.C (2010) and McCutcheon v. F.E.C. (2014) in which the Supreme Court ruled that the only legitimate governmental interest in restricting campaign contributions is to prevent "quid pro quo corruption" -- that is, outright bribery -- and that there can be no other reason for limiting the amount of money that individuals or corporations spend on candidates for public office. If the Supreme Court finds the reasoning of those cases applicable to this situation, it would strike down Florida Judicial Canon 7C(1) for being an unconstitutional restriction of Freedom of Expression.

Because, of course, campaign contributions are not a source of corruption. And Sir Francis Bacon, the fool, had nothing to be ashamed of!

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