Did Free Speech Just Take a Hit?

In April, the Supreme Court released their opinion in the case of William-Yulee vs. Florida Bar.   This case involved a candidate for Hillsborough County judge who directly solicited campaign contributions in an open letter to supporters announcing her candidacy.  Although she lost the primary election, the Florida Bar sought sanctions against her for violating the established Judicial Code of Conduct.  That code forbids anyone from direct solicitation of campaign funds, although their campaign committees may do so and the candidate can acknowledge a donation by writing a “thank you” note or letter.

Yulee sued the Florida Bar, but the Florida Supreme Court upheld the sanctions.  She then appealed to the Supreme Court arguing that her First Amendment Free Speech rights were being violated.  This was a Free Speech case bordering on campaign finance.

The decision was a plurality one with the controlling opinion authored by Chief Justice John Roberts.  Since joining the Court, Roberts has been on the winning majority side in all Free Speech cases and that record remains intact.  What makes this case interesting, however, is that Roberts sided with the liberal wing of the Court in upholding the ban on the direct solicitation of campaign donations.

To some this came as a surprise given the leeway afforded free speech rights in campaign finance law by the Roberts Court.  What prompted some disagreement among the majority (and, thus, plurality status) was the rationale.  The liberals on the Court will use every opportunity to whittle away at Citizens United and they were the four who likely chose to accept this case.

Roberts’ rationale was that judicial elections are somehow inherently different from other elections.  To paraphrase, he stated that citizens deserve to expect an atmosphere of impartiality in a court of law and that anything that taints those expectations, or even the appearance of the possibility of judicial corruption can be addressed through these state finance laws.  Obviously, the liberal wing diverges from the narrowness of this point since Roberts made the decision applicable only to the judiciary and only when judges are elected.  The liberal wing would like it extended to the Executive and Legislative branches.  In a certain sense, the liberal wing is demonstrating greater philosophical consistency than Roberts in this area.

Once you start making exceptions and then rationalizing those exceptions using the words and language of the liberals on the Court, you have started down a slippery slope that may end up in a rabbit hole of jurisprudence.  Roberts recounts how the Florida judiciary got to where they are today.  He cited the many scandals which was the reason they went from appointed to elected judges and then further recounts that the Judicial Canons in Florida were adopted in reaction to still more scandals in the 1970s.  Thus, not only the election of judges but also the Canons were reactions to actual scandals.  But, Roberts goes a little further and justifies the rules as an attempt to remove even the appearance of corruption.  Isn’t this exactly what the liberal wing of the Court consistently uses as a justification for upholding campaign finance laws in non-judicial elections?  Aren’t they, like Roberts here, justifying restrictions on Free Speech based on what amounts to “perceptions?”

So, the question becomes: “what makes the judicial branch different than the other branches?”  If one thinks about this enough, however, one can almost sort of understand Roberts.  With the Executive and Legislative branches, there are checks and balances and a diffusion and sharing of power.  Although there have been and currently are strong “law-makers,” generally a single person cannot achieve all the aims of donors to these people.  Conversely, judges wield enormous, individual powers which are not necessarily diffused.  While a party who feels they were wronged by a judge, or did not receive the impartial treatment expected in a court of law, could always appeal a decision, such propositions are expensive and judges are often reluctant to overturn the decision of another judge.

However, one has to consider that in the case of elected judges, perceived wrongs, favorable treatment and corruption could be addressed by options available in the other branches, namely the ballot box.  Perhaps the main problem is that judicial decisions can result in the loss of money, property, or even one’s freedom.  And these things are more immediate with the pounding of a gavel.  In the other branches, it entails debate, arm-twisting, compromise and the cobbling together of votes.  Hence, there is greater opportunity to shine a light on possible “corruption” and “influence.”  All that being said, Roberts should have stopped there.  Instead, he talked about transparency and disclosure in the context of campaign finance laws.  In effect, he laid the possible groundwork for allowing a law like the DISCLOSE Act to pass constitutional muster should it ever be enacted.

As Justice Kennedy rightfully notes in his dissent, the Roberts opinion intimated at the negation of years of Supreme Court jurisprudence in this area.  Just as the liberal wing has held their philosophical ground (although consistent, I find it incorrect), so has the triad of Scalia, Thomas and Alito.  You can now add Kennedy to that group.

In the practical sense, most analysis notes that this ruling will probably have little practical effect in the real world.  To this writer, the facts of the case illustrate the silliness of campaign finance laws.  Because Ms. William-Yulee signed her name to a letter, she is guilty of a transgression.  But, if her campaign committee had sent out an identical letter without her signature, it likely would not have violated the Florida Code of Judicial Conduct.  Drop the signature and the personal pronouns and you are not in violation; sign the letter and use words like “I” and you are guilty.

Which leads me to one final thought here.  Ever since the original Obamacare case upholding that law based on the Roberts vote, an ideological gap has been widening between Kennedy and Roberts.  One needs to question the ideological purity and consistency as this gap widens.  As I noted in a previous article, in non-unanimous cases thus far this term, Roberts has more in common with Kagan and Ginsburg than he has with Scalia or Kennedy.  Is this divergence ideological or is it reactionary?  Is Roberts slowly drifting Left, or is Kennedy retaliating against Roberts?  To this writer, it looks like a little of both.  The evidence is the obvious straining of the rationales in the opinions to arrive at the decisions they reach.  One more piece of evidence: before the NFIB vs. Sebelius Obamacare case, Kennedy and Roberts had a disagreement rate of 21.2%.  After that decision, their disagreement rate is 29% in non-unanimous cases.