The U.S. Supreme Court agreed on Thursday to hear a case on judicial campaign finance that will either affirm or overturn the way business is done in Alaska.
In September 2009, Lanell Williams-Yulee, candidate for Hillsborough County Court Judge, signed a fundraising letter soliciting campaign contributions. Wliiams-Yulee felt that that she had not violated the Florida Code of Judicial Conduct because she was unopposed at the time of the letter. The Code reads, “A candidate . . . for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds . . . .” (emphasis added) The Code does not prohibit judicial candidates from forming campaign committees that can themselves solicit campaign contributions.
Williams-Yulee argued before the Florida Supreme Court that the prohibition against direct solicitation of funds is a violation of free speech. The Court acknowledged the restriction of speech, which could only be constitutional if it served a compelling state interest. The Court ruled that the state had “compelling interests in preserving the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary[.]” Since her speech was not entirely curtailed, meaning she could fundraise through her committee, the Court found the Code of Judicial Conduct rule narrowly tailored enough to withstand constitutional scrutiny.
In Alaska, judicial nominees are chosen by the governor from a list provided by the independent Alaska Judicial Council. They are not elected. However, they are subject to periodic retention votes. According to Alaska’s Constitution: A Citizen’s Guide,
The [constitutional] convention delegates had no confidence in the electoral process to produce qualified judges. appointed judges do not need to worry about how their decisions will affect their immediate chances of re-election, nor do they need to finance expensive campaigns from donations by private interests (including attorneys who appear before them).
Canon 5 of the Alaska Judicial Code of Conduct prohibits any fundraising for judicial candidates seeking appointment. However, like Florida, if a candidate is opposed while seeking retention- and the Canon notes a “negative recommendation by the Alaska Judicial Council constitutes active opposition”- her election committee may solicit funds on her behalf.
Williams-Yulee’s challenge could result in those campaign fundraising restrictions being lifted in Alaska, an exciting development for a faction that opposes legal access to abortion. After numerous attempts to chip away at reproductive rights, State Senator Pete Kelly (R-Fairbanks) tried last year to stack the deck on the Judicial Council hoping to change the makeup of the Alaska courts. That bill, Senate Joint Resolution 21, was withdrawn from the Senate floor due to lack of support.
Jim Minnery of Alaska Family Council/Action has also done his part recently to remove judges he sees as pro-choice. Minnery and Alaska Family Action spent $50,000 in opposition to Chief Justice Dana Fabe’s retention. They led a similar attack on Superior Court Judge Sen Tan in 2012.
The Supreme Court’s decision in Williams-Yulee could go either way. The makeup of the Court and its previous rulings on campaign finance, Citizens United in 2010 and McCutcheon earlier this year, suggest that the Court will rule on the side of free speech. However, the justices are no strangers to accusations of bias and thus may yet be swayed by the Florida Supreme Court’s argument of a compelling interest in “preserving the integrity of the judiciary and maintaining the public’s confidence in an impartial judiciary[.]”
If the Court rules in favor of Williams-Yulee, everything will depend on the breadth of the decision. Will Alaska judges eventually be allowed to solicit campaign funds only for retention votes? Or will the Court decide that candidates can even raise funds when being considered for appointment?
The Court’s decision will be closely watched, as will the briefs in support of the opposing positions.