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Ruling: Judicial Candidates Can't Personally Solicit Campaign Funds


Here's a constant question when we talk about big money influencing campaigns. It's whether spending money equals free speech. A ruling by the Supreme Court answered a related question. It's whether public officials asking for money equals free speech. The court yesterday ruled that states can bar judicial candidates from personally soliciting campaign contributions. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: The unexpected outcome in the 5-to-4 ruling came for one reason. Chief Justice John Roberts jumped the fence on the issue, siding with the court's liberal members instead of the conservatives as he has in the past on campaign finance issues. Nonetheless, he wrote a narrow decision emphasizing the importance of public confidence in the independence and impartiality of the courts. Bert Brandenburg, executive director of the nonpartisan group Justice at Stake, was relieved by the decision.

BERT BRANDENBURG: More and more people are realizing that the courts can't be fair if the judges are not insulated from political pressure. And that insulation is getting eaten away by money.

TOTENBERG: In the last election cycle, some $33 million was spent on judicial elections, according to Brandenburg. Thirty-nine states elect some or all of their judges and almost all of those have a rule barring judicial candidates from personally soliciting money for their campaigns. The case before the court came from Florida where the canons of ethics allow committees to raise money for judicial candidates but do not allow the candidates to personally solicit contributions.

Lanell Williams-Yulee, a candidate for the trial bench in Hillsboro County, mailed and posted online a signed letter to potential contributors soliciting funds. For this, she was reprimanded and fined. She then challenged the ban on personal solicitation as a violation of her free speech rights. At the time her case reached the court, several appeals courts had already struck down similar bans in other states. But the Supreme Court did not agree.

Writing for the majority, Chief Justice Roberts said that judges are not politicians, even when they're elected to their positions. And states have an overriding interest in assuring citizens that their cases will be decided without fear or favor. Roberts said there's a distinction between judicial candidates and candidates for a legislative or executive office. While politicians are expected to be appropriately responsive to the preferences of their supporters, the same is not true for judges. Indeed, he said, judges are not meant to give any special consideration to campaign donors. Ultimately, said the chief justice, our judicial system depends on public confidence. And if that confidence erodes, people will not abide by judicial decrees.

Dissenting from the decision were Justices Scalia, Kennedy, Thomas and Alito. There is no mystery about what's going on here, wrote Scalia. The court, which usually extends robust protections for free speech, has decided that the policy objective here is a higher one. And thus, the majority has abridged freedom of speech in order to protect the brotherhood of the robe. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.

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