The Supreme Court will decide soon whether states can bar judicial candidates from directly and personally soliciting contributions to their campaigns. The stakes are high; the stakes are also low.
That is the conclusion to be drawn from the arguments presented to the court by groups appealing for the ban to be upheld. See Brief for Brennan Center For Justice at NYU School of Law, et al. as Amici Curiae Supporting Respondent, Lanell Williams-Yulee v. The Florida Bar, No. 13-1499 (U.S. Dec. 24, 2014). Its effects are modest, they argue, not to be confused with a major barrier to free campaign speech. Under the Florida rules before the Justices, the candidates can establish a fundraising committee, choose those to operate it, and release it to the work of soliciting the funds on their behalf. The candidate never asks, she only receives, but she may learn who gave and then thank them. So the ban on more personal solicitation is a “modest” or “minor” restriction (id. at 20, 23), and not in practical terms, too grave a complication: judges have managed to raise massive sums as the costs of campaigns and the fundraising required to meet them has sharply risen.
But, as modest as this restriction on speech may be, its death by the hand of the Court would have “severe” consequences for due process and public confidence in the judiciary. Id. at 20. A public that could live with the candidates’ fundraising committees could not abide the more direct “ask,” and litigants would also have less to fear if judicial candidates appointed others to chase down their donors. Other regulatory measures like contribution limits or recusals are not as effective: the problem in this case is the speech itself, and it must be restricted.
So this seems like a bargain—a modest restriction yielding enormous benefits, by staving off a “severe” problem in the administration of justice. But it does raise the question of whether it can be true that a reform measure that is “modest” or “minor” in scope can be credited with major regulatory significance.
The federal campaign finance laws lend little support to confidence that this is the case. Federal candidates cannot solicit soft money, and some might think that this is a limited restriction but with large pay-offs (so to speak). But so long as they can say they were acting on their own and not on the candidate’s “behalf”, the candidate’s supporters can ask for the cash, requesting that it be given to state parties or Super PACs or (c) organizations. And the candidate can show up at event where the money is raised, even if she cannot ask for money.
The result of all this is a series of rules that are either baffling or diverting, depending on one’s point of view, that define the difference between an appeal for “solicitation” and a call for political support. Where the candidate successfully keeps to the right side of the line, she can be the honored guest or featured speaker at an event at which “soft money” is raised—so long as she does not “solicit” within the meaning of the law.
In the case of judicial candidates, the ban now being litigated applies to money raised for their own campaign—not for allies that might spend it independently of them and outside their control. A committee they establish, staffed with volunteers they choose, raises the money the candidates cannot ask for directly—except that they will know who has given and they are free to thank them. In that sense, the route around the restriction is even more direct, more advantageous to them, than the one available to candidates for federal office. It is fair to say that the restriction on the “direct ask” is “modest”, and so, by the same measure, is the point of it all.
To raise a question of whether a modest restriction can translate into a major policy triumph in political reform is not to discredit the objection to judicial elections and their effect on either due process or public confidence. But limited restrictions have, usually, limited benefits, and this is all that can be expected from the ban on judicial candidate solicitations now before the Court.
But, of course, that may not be good enough to win the argument before the Court. Under the relevant constitutional test, the ban proponents mean to show that a prohibition on direct solicitations is “targeted” or “tailored” to the state’s compelling interest, (Id. at 7), but in this case, the targeting or tailoring seems to translate into a measure that is modest or minor—and to the improbable suggestion that it yields major benefits.