Williams-Yulee v. Florida Bar

The Supreme Court will determine whether a Florida rule of judicial conduct—Canon 7C(1)—that prohibits judicial candidates from personally soliciting campaign contributions violates the judicial candidates’ First Amendment right to free speech. Canon 7C(1) prohibits a candidate running for judicial office from personally soliciting campaign funds but permits the candidate to establish a campaign committee to solicit and manage the candidate’s campaign funds. Because Canon 7C(1) restricts speech on the basis of its content, it is subject to strict scrutiny review, meaning Florida must demonstrate that the rule is necessary to serve a compelling state interest and “does not unnecessarily circumscribe protected expression.”

Williams-Yulee argues that Canon 7C(1) does not survive strict scrutiny review because it is not narrowly tailored to serve Florida’s interests in preventing judicial corruption and bias. Williams-Yulee argues that Canon 7C(1) is both underinclusive, because Florida still permits injury to its interests through alternative means, and overinclusive, because Florida could protect its interests using less restrictive means.

On the other hand, The Florida Bar contends that Canon 7C(1) survives strict scrutiny review and does not invoke the Supreme Court’s underinclusiveness doctrine because the doctrine is applied to nullify rules that may contain a loophole that renders the rule ineffective, and there is no such loophole in Canon7C(1). Moreover, the Florida Bar argues that Canon 7C(1) is not overinclusive because candidates are still able to engage in free expression and to establish fundraising committees.

IS CANON 7C(1) UNDERINCLUSIVE TO ACCOMPLISH FLORIDA’S PURPOSES?

Williams-Yulee argues that Canon 7C(1)’s solicitation prohibition is underinclusive to prevent judicial corruption and bias, and is therefore unnecessary to accomplish Florida’s purposes for the rule. Williams-Yulee argues that Florida’s interest in preventing quid pro quo corruption cannot justify Canon 7C(1) because Florida has the same interest in preventing quid pro quo corruption of elected officials in other contexts, yet Florida only prohibits judicial candidates from soliciting campaign contributions. Williams-Yulee also claims that Canon 7C(1) is not necessary to prevent judicial bias because a judicial candidate can still learn who contributed to the campaign by reviewing the campaign committee’s reports or serving as the committee’s treasurer. According to Williams-Yulee, knowledge of who contributes creates the potential for bias, and the recipients of campaign solicitations may feel pressured—knowing the candidate will learn whether the recipient contributed—to contribute out of fear of falling out of favor with the judge. Finally, Williams-Yulee claims that Canon 7C(1) permits judicial candidates to solicit other kinds of support, such as time working on the candidate’s campaign committee, that raise the same risks of bias as monetary requests.

The Florida Bar counters that Canon 7C(1) is not underinclusive and that none of Williams-Yulee’s complaints render the rule unconstitutional. According to The Florida Bar, the potential for quid pro quo corruption derives from the direct link between the contributor and the candidate. The Florida Bar contends that, under the Supreme Court’s analysis of First Amendment claims, the underinclusiveness doctrine is applied to invalidate rules containing loopholes that render the rule ineffective and “cast suspicion” on the motive of the legislature. According to The Florida Bar, the underinclusiveness doctrine is not implicated in this case because Canon 7C(1) does not contain any such loophole, since it serves Florida’s interest by severing the direct link between contributors and candidates. Moreover, The Florida Bar claims that Canon 7C(1) is limited to judicial candidates because the Florida Supreme Court, under Florida’s constitutional separation of powers provision, does not have constitutional authority to establish ethical rules for the executive or legislative branches. The Florida Bar further argues that the candidate’s ability to learn who contributes to the campaign does not render Canon 7C(1) ineffective because the relationship is between the contributor and the third-party fundraiser. Thus, The Florida Bar claims that at the time the contribution is made, the contributor does not know if the candidate will learn of the contribution, and the candidate does not know whether the relationship between the contributor and the campaign fundraiser inspired the contribution. Finally, The Florida Bar claims that Williams-Yulee’s argument that non-monetary support raises the same risks as monetary support is meritless because Florida could reasonably have found that there was a greater risk of quid pro quo corruption with monetary contributions than voluntary labor.

IS CANON 7C(1) OVERINCLUSIVE IN SERVING FLORIDA’S INTERESTS?

Williams-Yulee asserts that Canon 7C(1) is overinclusive and not narrowly tailored because not all forms of personal solicitation endanger Florida’s interests and there are less restrictive means for achieving the rule’s purposes. According to Williams-Yulee, because Florida banned judicial candidates from using any form of personal solicitation under the rule, Florida must show that every form of personal solicitation endangers its interests. Williams-Yulee claims, therefore, that the rule is overinclusive because mass mailings and speeches to large audiences requesting donations do not endanger the judiciary’s integrity. According to Williams-Yulee, such forms of solicitation might not beget any contributions at all, and no person could reasonably believe that a donation given after a candidate’s request for contributions at a large rally, or failure to respond to a mass mailing, would lead a judge to treat the person differently in future dealings. Williams-Yulee also argues that Florida can further its interests using less restrictive means, such as by permitting parties to request recusal for fear of bias or by setting contribution limits. Williams-Yulee claims that recusal is a better alternative to Canon 7C(1) because it disqualifies judges from presiding over matters where there is a risk of partiality without infringing on judicial candidates’ First Amendment right to freedom of speech. Although there may be burdens associated with recusal, Williams-Yulee argues no such burden is so great as to permit a restriction on free speech. Williams-Yulee also claims that contribution limits are a better alternative to Canon 7C(1) because limitations provide only a marginal restriction on free speech and also protect against the risk of judicial corruption and bias from the candidate’s fundraising committee.

The Florida Bar counters that Canon 7C(1) is not overinclusive and is narrowly tailored because it does not prohibit judicial candidates from engaging in free expression and it permits candidates to solicit monetary contributions through their committees. Relying on the Supreme Court’s findings in Buckley v. Valeo and McConnell v. FEC, the Florida bar claims that although candidates are personally restricted from soliciting contributions, the existence of similar opportunities for soliciting contributions through the candidate’s committee is evidence of narrow tailoring. The Florida Bar argues that Canon 7C(1)’s complete ban on personal solicitations is reasonable because a narrower rule would be unmanageable and difficult to apply. Indeed, The Florida Bar claims, Williams-Yulee’s argument that the rule is overinclusive is similar to the one rejected by the Court in Buckley, where the Court stated that legislation is not invalidated simply because Congress did not fine tune it, and that “distinctions in degree become significant only when they can be said to amount to differences in kind.” The Florida Bar also claims that the ban on personal solicitation is only a marginal restriction on freedom of speech and is similar to the Court’s finding on contribution limits in McConnell, where the Court held contribution limits to be constitutional. Moreover, The Florida Bar further argues that recusal is not a reasonable substitute for Canon 7C(1) because it does not prevent the potential for corruption since judges decide whether to recuse themselves and recusal is seldom subject to constitutional challenge. Finally, The Florida Bar maintains that Canon 7C(1) is constitutional because it does not place any greater restrictions on candidates’ freedom of speech than contribution limitations, and Congress never limited First Amendment restrictions to contribution limitations.