Analysis Law and Policy

The Roberts Court Could Open Judicial Elections to Even More Cash

Jessica Mason Pieklo

There is no perfect way to staff our judiciary, but the evidence is inescapable that the more money that goes into electing judges, the worse our state courts perform.

Under the watchful eye of Chief Justice John Roberts, the conservative majority on the U.S. Supreme Court has used the First Amendment to radically shift our political landscape.

It did so first in 2010, with the declaration under Citizens United v. Federal Election Commission (FEC) that corporations have First Amendment freedom of speech rights and by striking limitations on direct corporate political spending. It followed that decision with last term’s McCutcheon v. FEC, which struck similar limitations on individual spending limits, and to a lesser degree in SBA List v. Driehaus, by seriously undermining state efforts to regulate truth in political advertising.

Now the Court is considering the role money plays in judicial elections.

Unlike federal judges, who are appointed and approved to their posts, 39 states elect their judges in some way. Some judges are first appointed and then face “retention” elections, while others run for a spot on the bench the way other candidates run for a spot in their state assembly. But unlike legislators, who as politicians are by definition supposed to be ideologues, judges are supposed to be impartial advocates. And that presents its own set of challenges when regulating judicial elections, especially when the issue of campaign contributions, donations, and endorsements come in.

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That’s why, even in states that provide for partisan judicial elections, nearly every state that elects its judges has adopted some form of the prohibition on judicial candidates personally soliciting campaign contributions under the American Bar Association’s Model Code of Judicial Conduct. Florida is one such state. Canon 7C(1) of the Florida Code of Judicial Conduct states, in part:

A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy.

In 2009, Lanell Williams-Yulee decided to run for county court judge in Hillsborough County, Florida. Shortly after she registered as a judicial candidate, she drafted and signed a mass-mail letter announcing her candidacy and seeking campaign contributions. According to Williams-Yulee, the solicitation was an oversight and the result of her not proofreading her campaign literature closely enough. The Florida Supreme Court publicly sanctioned and fined Williams-Yulee for violating Canon 7C(1), rejecting her claim that the rule violates the First Amendment; now she no doubt hopes the Roberts Court agrees with her that it does.

By objective standards, this is a case the Supreme Court should hear. There’s deep division in the federal courts as to whether these kinds of prohibitions violate the First Amendment. Here, the Florida Supreme Court held that Canon 7C(1) is narrowly tailored to achieve the compelling state interest of ensuring an impartial judiciary. The U.S. Court of Appeals for the Seventh Circuit reached similar conclusions in cases challenging personal solicitation bans on judicial candidates in Indiana and Wisconsin. The Third Circuit upheld Pennsylvania’s ban while state supreme courts in Arkansas and Oregon upheld those state’s bans. Meanwhile, four other federal courts of appeals have held that personal solicitation bans fail strict scrutiny and, therefore, violate the First Amendment. That’s precisely the kind of confusion the Supreme Court was designed to resolve.

But as is always the fear with the Roberts Court, an invitation to settle a dispute among the federal courts is usually seen by the conservative majority as an opportunity to advance its anti-regulatory agenda, and all the better if it can do so via the Constitution. But this case is the perfect candidate (pardon the pun) for the Roberts Court to do for judicial elections what it did for elections generally: further open the pipeline of money.

The gist of Williams-Yulee’s argument is that these kinds of regulations are ineffective because they both regulate too much and too little speech at the same time. Williams-Yulee argues that they do too little in that a candidate herself can’t solicit, but her election committee can on her behalf. On the other hand, such regulations do too much because they prevent judicial candidates from even sending mass mailings with their name on them under a stated concern that the recipients will feel compelled to either contribute to the campaign or face possible mistreatment should they appear before the judge in the future. Furthermore, Williams-Yulee argues, these kinds of regulations often benefit incumbent judges and thus put otherwise good challengers at a disadvantage. Framed this way, Cannon 7C(1) is precisely the kind of government overreach and feigned disrespect for voters that the conservative justices on the Roberts Court sneered at in both Citizens United and McCutcheon.

While not perfect by a long shot, judicial cannons like Florida’s have at least erected more barriers to flatly politicizing the judicial electoral process than exist generally for candidates. Given the increasingly negative role political spending plays in judicial elections and the reality that conservatives are spending more and more money in judicial elections every cycle, every bit that helps stem political spending from completely taking over judicial elections counts. And while I usually dislike a “slippery slope” argument, it’s not a reach to say that this could go from personally soliciting donations to personally soliciting endorsements. That’s what Peggy Rowe-Linn of West Palm Beach, Florida, did. Rowe-Linn is one of three candidates running to be a circuit judge in Palm Beach County, but she was the only candidate to have the endorsement of Personhood Florida ProLife PAC after she signed a pledge to support the political action committee’s issues.

Since I’ve already made one slippery-slope argument, I’ll go ahead and make another: The Roberts Court has largely succeeded in helping deliver some of the most devastating blows to civil rights and the integrity of the democratic process—not in grand, sweeping decisions, but incrementally. If one campaign restriction on judicial candidates falls under the Roberts Court because it violates the First Amendment, there’s a pretty good chance most will. And where would that leave us? Public confidence in the integrity of the civil justice system is already plummeting, matching most Americans’ feelings about the failure of our criminal justice system.

There’s a real danger to buying into the simplicity of the “they’re just a formality, they don’t really work” argument that the people attacking personal solicitations bans make. First of all, the regulations obviously work because Williams-Yulee was reprimanded for violating Florida’s personal solicitation ban. But more importantly, as the Peggy Rowe-Linn candidacy demonstrates, the problem isn’t finding the perfect balance for regulating judicial elections; it’s having them at all. There is no perfect way to staff our judiciary, but the evidence is inescapable that the more money that goes into electing judges, the worse our state courts perform.

The Roberts Court has not yet decided if it will hear Williams-Yulee’s case.

Roundups Law and Policy

Gavel Drop: Ruth Bader Ginsburg Hints at More Supreme Court Retirements

Imani Gandy & Jessica Mason Pieklo

In a recent interview, Supreme Court Justice Ruth Bader Ginsburg dishes on the last Supreme Court term and hints the next president may have more than one justice to appoint.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Ruth Bader Ginsburg suggests the next president is going to have a couple of U.S. Supreme Court nominations to make, which means the Court could be effectively up for grabs depending on this election’s outcome.

This summer, the Supreme Court ordered the Obama administration and religiously affiliated nonprofits who object to providing contraception to try and find some kind of compromise. While they hammer one out, a University of Notre Dame student has asked a federal appeals court to let her join in the litigation, to fight the university’s stance of trying to deny access to contraception coverage.

Anti-choice protesters will be descending on Wichita, Kansas, this week to commemorate the 25th anniversary of the Summer of Mercy clinic sieges.

A state judge dismissed a lawsuit filed by Kentucky Gov. Matt Bevin (R) against Planned Parenthood of Indiana and Kentucky for purportedly performing abortions without license.

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Florida officials have not yet appealed a federal district court ruling blocking a law that would have prevented Medicaid funds from going to Planned Parenthood reproductive health care centers. The law would also mandate a state regulator review of patient records from half of the approximately 70,000 abortions in the state each year.

An Ohio appeals court ruled a Cleveland abortion clinic can move forward with its lawsuit challenging requirements that prohibit public hospitals from entering into transfer agreements with clinics, along with another requirement that mandates providers to check for a fetal heartbeat before performing an abortion.

Attorneys from the American Civil Liberties Union (ACLU) sued to block an Indiana law requiring that a patient getting an abortion must have an ultrasound 18 hours before the procedure.

Meanwhile, abortion rights supporters in Wisconsin are urging lawmakers to repeal the state’s admitting privileges requirement.

Anti-choice lawmakers in Texas plan to try to require aborted fetuses to be buried or cremated in an attempt to add additional emotional burden and administrative expense to the procedure.

Free speech for whom, exactly? The man who posted the video of the police killing of Alton Sterling has been reportedly arrested on charges of assault and battery.

Roundups Politics

Campaign Week in Review: Trump Weighs in on Supreme Court Decision, After Pressure From Anti-Choice Leaders

Ally Boguhn

The presumptive Republican nominee’s confirmation that he opposed the decision in Whole Woman’s Health v. Hellerstedt came after several days of silence from Trump on the matter—much to the lamentation of anti-choice advocates.

Donald Trump commented on the U.S. Supreme Court’s abortion decision this week—but only after days of pressure from anti-choice advocates—and Hillary Clinton wrote an op-ed explaining how one state’s then-pending decision on whether to fund Planned Parenthood illustrates the high stakes of the election for reproductive rights and health.

Following Anti-Choice Pressure, Trump Weighs in on Supreme Court’s Abortion Decision

Trump finally broke his silence Thursday about the Supreme Court’s decision earlier this week, which struck down two provisions of Texas’ HB 2 in Whole Woman’s Health v. Hellerstedt.

“Now if we had Scalia was living, or if Scalia was replaced by me, you wouldn’t have had that,” Trump claimed of the Court’s decision, evidently not realizing that the Monday ruling was 5 to 3 and one vote would not have made a numerical difference, during an appearance on conservative radio program The Mike Gallagher Show. “It would have been the opposite.” 

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“So just to confirm, under a President Donald Trump-appointed Supreme Court, you wouldn’t see a majority ruling like the one we had with the Texas abortion law this week?” asked host Mike Gallagher.

“No…you wouldn’t see that,” replied Trump, who also noted that the case demonstrated the important role the next president will play in steering the direction of the Court through judicial nominations.

The presumptive Republican nominee’s confirmation that he opposed the decision in Whole Woman’s Health came after several days of silence from Trump on the matter—prompting much lamentation from anti-choice advocates. Despite having promised to nominate anti-choice Supreme Court justices and pass anti-abortion restrictions if elected during a meeting with more than 1,000 faith and anti-choice leaders in New York City last week, Trump made waves among those who oppose abortion when he did not immediately comment on the Court’s Monday decision.

“I think [Trump’s silence] gives all pro-life leaders pause,” said the president of the anti-choice conservative organization The Family Leader, Bob Vander Plaats, prior to Trump’s comments Thursday, according to the Daily Beast. Vander Plaats, who attended last week’s meeting with Trump, went on suggest that Trump’s hesitation to weigh in on the matter “gives all people that are looking for life as their issue, who are looking to support a presidential candidate—it gives them an unnecessary pause. There shouldn’t have to be a pause here.”

“This is the biggest abortion decision that has come down in years and Hillary Clinton was quick to comment—was all over Twitter—and yet we heard crickets from Donald Trump,” Penny Young Nance, president of Concerned Women for America, said in a Tuesday statement to the Daily Beast.

Kristan Hawkins, president of Students for Life of America, expressed similar dismay on Wednesday that Trump hadn’t addressed the Court’s ruling. “So where was Mr. Trump, the candidate the pro-life movement is depending upon, when this blow hit?” wrote Hawkins, in an opinion piece for the Washington Post. “He was on Twitter, making fun of Elizabeth Warren and lamenting how CNN has gone negative on him. That’s it. Nothing else.”

“Right now in the pro-life movement people are wondering if Mr. Trump’s staff is uninformed or frankly, if he just doesn’t care about the topic of life,” added Hawkins. “Was that meeting last week just a farce, just another one of his shows?”

Anti-choice leaders, however, were not the only ones to criticize Trump’s response to the ruling. After Trump broke his silence, reproductive rights leaders were quick to condemn the Republican’s comments.

“Donald Trump has been clear from the beginning—he wants to overturn Roe v. Wade, and said he believes a woman should be ‘punished’ if she has an abortion,” said Dawn Laguens, executive vice president of Planned Parenthood Action Fund, which has already endorsed Clinton for the presidency, in a statement on Trump’s comments. 

“Trump’s remarks today should send a shiver down the spine of anyone who believes women should have access to safe, legal abortion. Electing Trump means he will fight to take away the very rights the Supreme Court just ruled this week are constitutional and necessary health care,” continued Laguens.

In contrast to Trump’s delayed reaction, presumptive Democratic nominee Clinton tweeted within minutes of the landmark abortion rights decision, “This fight isn’t over: The next president has to protect women’s health. Women won’t be ‘punished’ for exercising their basic rights.”

Clinton Pens Op-Ed Defending Planned Parenthood in New Hampshire

Clinton penned an op-ed for the Concord Monitor Wednesday explaining that New Hampshire’s pending vote on Planned Parenthood funding highlighted “what’s at stake this election.”

“For half a century, Planned Parenthood has been there for people in New Hampshire, no matter what. Every year, it provides care to almost 13,000 people who need access to services like counseling, contraception, and family planning,” wrote Clinton. “Many of these patients cannot afford to go anywhere else. Others choose the organization because it’s the provider they know and trust.”

The former secretary of state went on to contend that New Hampshire’s Executive Council’s discussion of denying funds to the organization was more than “just playing politics—they’re playing with their constituents’ health and well-being.” The council voted later that day to restore Planned Parenthood’s contract.

Praising the Supreme Court’s Monday decision in Whole Woman’s Health, Clinton cautioned in the piece that although it was a “critical victory,” there is still “work to do as long as obstacles” remained to reproductive health-care access.

Vowing to “make sure that a woman’s right to make her own health decisions remains as permanent as all of the other values we hold dear” if elected, Clinton promised to work to protect Planned Parenthood, safeguard legal abortion, and support comprehensive and inclusive sexual education programs.

Reiterating her opposition to the Hyde Amendment, which bans most federal funding for abortion care, Clinton wrote that she would “fight laws on the books” like it that “make it harder for low-income women to get the care they deserve.”

Clinton’s campaign noted the candidate’s support for repealing Hyde while answering a 2008 questionnaire provided by Rewire. During the 2016 election season, the federal ban on abortion funding became a more visible issue, and Clinton noted in a January forum that the ban “is just hard to justify” given that restrictions such as Hyde inhibit many low-income and rural women from accessing care.

What Else We’re Reading

Politico Magazine’s Bill Scher highlighted some of the potential problems Clinton could face should she choose former Virginia governor Tim Kaine as her vice presidential pickincluding his beliefs about abortion.

Foster Friess, a GOP mega-donor who once notoriously said that contraception is “inexpensive … you know, back in my days, they used Bayer aspirin for contraception. The gals put it between their knees, and it wasn’t that costly,” is throwing his support behind Trump, comparing the presumptive Republican nominee to biblical figures.

Clinton dropped by the Toast on the publication’s last day, urging readers to follow the site’s example and “look forward and consider how you might make your voice heard in whatever arenas matter most to you.”

Irin Carmon joined the New Republic’s “Primary Concerns” podcast this week to discuss the implications of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt on the election.

According to analysis from the Wall Street Journal, the popularity of the Libertarian Party in this year’s election could affect the presidential race, and the most likely outcome is “upsetting a close race—most likely Florida, where the margin of victory is traditionally narrow.”

The Center for Responsive Politics’ Alec Goodwin gave an autopsy of Jeb Bush’s massive Right to Rise super PAC.

Katie McGinty (D), who is running against incumbent Sen. Pat Toomey (R) in Pennsylvania, wrote an op-ed this week for the Philly Voice calling to “fight efforts in Pa. to restrict women’s access to health care.”

The Iowa Supreme Court ruled against an attempt to restore voting rights to more than 20,000 residents affected by the state’s law disenfranchising those who previously served time for felonies, ThinkProgress reports.

An organization in Louisiana filed a lawsuit against the state on behalf of the almost 70,000 people there who have previously served time for felonies and are now on probation or parole, alleging that they are being “wrongfully excluded from registering to vote and voting.”