- Erin Murphy, Bancroft PLLC
On Tuesday, January 20, the Supreme Court heard argument in Williams-Yulee v. The Florida Bar, a First Amendment case involving the manner in which elected judges may raise campaign funds for themselves. The issue is whether a widely adopted provision of the ABA Model Code of Judicial Conduct, which prohibits judicial candidates from personally soliciting campaign funds, violates the First Amendment. Personal solicitation of campaign funds raises concerns that prospective or sitting judges might favor or disfavor litigants and attorneys based on how they responded to such solicitation. On the other side of the issue, once States have decided to elect judges, free political speech becomes a critical component of any fair and democratic election process. In addition to broader arguments regarding the proper scope and function of the First Amendment in the context of judicial elections, this case will involve more focused First Amendment questions regarding whether the current rule, as adopted in Florida, is actually effective in preserving the existence or appearance of impartiality and whether there are less restrictive means – such as recusal – to further such goals.
“There is no right more basic in our democracy than the right to participate in electing our political leaders,” said the U.S. Supreme Court in striking down the federal biennial limit on contributions to non-candidate committees. In his new book, Outsider Inside the Supreme Court: A Decisive First Amendment Battle, plaintiff Shaun McCutcheon explains how he sought to achieve positive change in the political process in bringing his lawsuit. On our Teleforum, Mr. McCutcheon described his road to the nation's highest court, and his quest to bring needed change to Washington by giving more candidates an opportunity to compete in the political arena and offer expanded ideas in the public marketplace.
Stating that “There is no right more basic in our democracy than the right to participate in electing our political leaders,” on April 2, 2014, the U.S. Supreme Court struck down the federal biennial limit on contributions to non-candidate committees. News coverage of the decision explains that it effects only a small handful of donors, but characterizes it as important nevertheless. How sweeping is the decision, and how important might it prove to be in coming elections? Is the Court now positioned to continue to favor the First Amendment over the Bipartisan Campaign Reform Act?
On April 2, 2014, the Supreme Court issued its decision in McCutcheon v. Federal Election Commission. This case involves constitutional challenges to federal election laws that limit, over the course of a two-year election cycle, the total amount a person may contribute to so-called “non-candidate committees,” such as political parties and political action committees. Petitioner McCutcheon contends that these limits are based on no “constitutionally cognizable interest” and therefore violate the First Amendment on their face, or alternatively, as applied to contributions to national party committees. In addition, McCutcheon contends, the limits are numerically so low as to be constitutionally invalid on that basis as well, both on their face and as applied. Finally, McCutcheon argues that federally imposed limits on contributions to candidate committees likewise violate the First Amendment for lack of a “constitutionally cognizable interest.”
In an opinion delivered by Chief Justice Roberts, the Court held by a vote of 5-4 that the aggregate limits violate the First Amendment, as they do little to prevent quid pro quo corruption or the appearance thereof, yet seriously restrict participation in the democratic process. Justices Scalia, Kennedy, and Alito joined the Chief’s opinion. Justice Thomas wrote an opinion concurring in the judgment. Justice Breyer wrote a dissenting opinion, joined by Justices Ginsburg, Kagan, and Sotomayor. The decision of the United States District Court for the District of Columbia was reversed and remanded.
To discuss the case, we have Derek Muller, an Associate Professor of Law at the Pepperdine University School of Law.