This post is an excerpts from a paper prepared by the National Center for State Courts. NCSC gave permission to reprint this article. Please let me know if you would like a copy.
Case-law Following Republican Party of Minnesota v. White, 536 U.S. 765 (2002)
Personal solicitation clause
Canon 5C(2) of the 1990 model code provided: “A candidate shall not personally solicit or accept campaign contributions or personally solicit publicly stated support. A candidate may, however, establish committees of responsible persons to conduct campaigns for the candidate through media advertisements, brochures, mailings, candidate forums and other means not prohibited by law.” Similarly, Rule 4.1(A)(8) of the 2007 model provides: “A judge or a judicial candidate shall not personally solicit or accept campaign contributions other than through a campaign committee . . . .”
In the 2015 decision The Florida Bar v. Williams-Yulee, by a 5-4 vote, the U.S. Supreme Court rejected a First Amendment challenge to the personal solicitation clause, affirming the judgment of the Florida Supreme Court publicly reprimanding a former judicial candidate for a letter asking for contributions to her campaign she had mailed and posted on her campaign web-site. Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656 (2015). The Court noted that most of the states (30 of the 39) that elect judges, like Florida, prohibit judicial candidates from soliciting campaign funds personally, but allow them to raise money through committees.
The Court began with the key principle of its decision:
Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.
Applying strict scrutiny, the U.S. Supreme Court found that the Florida Supreme Court had “adopted Canon 7C(1) to promote the State’s interests in ‘protecting the integrity of the judiciary’ and ‘maintaining the public’s confidence in an impartial judiciary.’” The Court held that the state’s interest in preserving public confidence in the integrity of its judiciary was greater than “its interest in preventing the appearance of corruption in legislative and executive elections.”
The Court rejected the candidate’s argument that the canon was unconstitutionally underinclusive because it failed to restrict other speech equally damaging to judicial integrity and its appearance. The Court also rejected the candidate’s argument that the canon was not narrowly tailored because it applied not only to direct one-to-one solicitation of lawyers and individuals or businesses that could reasonably appear before the candidate if elected, but to a letter posted on-line and distributed by mass mailing. The Court stated that the “considered judgments” of “most States with elected judges . . . that drawing a line between personal solicitation by candidates and solicitation by committees is necessary to preserve public confidence in the integrity of the judiciary . . . deserve our respect, especially because they reflect sensitive choices by States in an area central to their own governance—how to select those who ‘sit as their judges.’” Finally, the Court rejected the candidate’s argument “that Florida can accomplish its compelling interest through the less restrictive means of recusal rules and campaign contribution limits.”
Prior to Williams-Yulee, the 6th, 8th and, 11th Circuits, in cases from Georgia, Kentucky, and Minnesota, and a federal district court in Kansas had held the personal solicitation clause unconstitutional. Weaver v. Bonner, 309 F.3d 1312 (11th Circuit 2002) (Georgia); Yost v. Stout, 2008 U.S. Dist. LEXIS 107557 (2008), appeal dismissed, 607 F.3d 1239 (10th Circuit 2010); Carey v. Wolnitzek, 614 F.3d 189 (6th Circuit 2010) (Kentucky); Republican Party of Minnesota v. White, 416 F.3d 738 (8th Circuit 2005), cert. denied, Dimick v. Republican Party of Minnesota, 546 U.S. 1157 (2006). Sitting en banc, the 8th Circuit upheld a revised version of the personal solicitation clause in Minnesota. The 7th Circuit has twice upheld the solicitation ban in cases from Wisconsin and Indiana. Siefert v. Alexander, 608 F.3d 974, petition for re-hearing en banc denied, 619 F.3d 776 (7th Circuit 2010), petition for certiorari denied, 131 S. Ct. 2872 (2011); Bauer v. Shepard, 620 F.3d 704 (7th Circuit 2010), cert. denied, 131 S. Ct. 2872 (2011). After Williams-Yulee, the 9th Circuit sitting en banc upheld the clause in the Arizona code of judicial conduct prohibiting judicial candidates from personally soliciting or accepting campaign contributions other than through a campaign committee. Wolfson v. Concannon, 811 F.3d 1176 (9th Circuit en banc 2016), certiorari filed (http://www.supremecourt.gov/search.aspx?filename=/docketfiles/16-9.htm). The Arkansas Supreme Court rejected challenges to the constitutionality of the personal solicitation clause in judicial discipline or bar discipline proceedings. Simes v. Judicial Discipline and Disability Commission, 247 S.W.3d 876 (Arkansas 2007).
Relying on Williams-Yulee and affirming the judgment of the district court denying a motion for a preliminary injunction, the U.S. Court of Appeals for the 6th Circuit held that a judicial candidate’s campaign committee failed to demonstrate a likelihood of success on the merits of its claim that the temporal restrictions on solicitation and receipt of campaign contributions in the Ohio code violated its First Amendment rights and the Equal Protection Clause of the 14th Amendment. Friends of O’Toole v. O’Connor (6th Circuit September 21, 2015) (http://www.ca6.uscourts.gov/opinions.pdf/15a0232p-06.pdf).
Effective December 31, 2015, the New Mexico Supreme Court added a prohibition on personal solicitation of campaign contributions by judicial candidates to the state’s code of judicial conduct. Rule 21-402A now provides: “Candidates shall not personally solicit or personally accept contributions for their own campaigns.” The Court deleted a previous comment that had stated that “[c]andidates for judicial office may solicit contributions for their own campaigns, within the restrictions of this rule . . . .”