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The U.S. Supreme Court hears arguments today in a case that tests whether an election for a judge is just like any other election. The question is whether judicial elections can have special rules, as many do. Many states try to preserve judicial impartiality by barring judicial candidates from personally soliciting campaign contributions. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: There was a time when judicial elections were a pretty tame affair with relatively little money spent and candidates in most states limited in how they could campaign - not anymore. Special interest money is pouring into judicial elections, and a new conservative Supreme Court majority has repeatedly struck down rules long in place to limit campaign fundraising.
Now comes the first challenge to limits specifically aimed at fundraising by judicial candidates. Thirty-nine states elect some or all their judges and most bar judicial candidates from personally soliciting campaign contributions. Today's case tests that personal soliciting ban in a case from Florida, where all judicial election fundraising is supposed to be done by candidate committees and not the candidates themselves.
Lanell Williams-Yulee ran for the trial bench in Hillsborough County, Florida, in 2009. She sent out a signed a letter to potential contributors seeking money for her campaign. And she posted a signed appeal on her website. For this, she was reprimanded and fined. She then challenged the personal solicitation ban as a violation of her First Amendment right to free speech, appealing all the way to the Supreme Court. In the High Court today, lawyers representing the Florida Bar will defend the ban as necessary to protect two important constitutional values - the impartiality and integrity of the courts and also the constitutional right to due process of law, guaranteed for those who come before the courts seeking justice. Several former chief justices of the Florida Supreme Court have filed briefs supporting the personal solicitation ban, among them Harry Lee Anstead.
HARRY LEE ANSTEAD: The image created is a judge in their robes, holding their hand out to a lawyer or to a private company, and cash being passed from one hand to the other.
ANDREW PINCUS: This is not a contribution going from the hand of a lawyer to the hand of the judge.
TOTENBERG: Andrew Pincus is the lawyer for Williams-Yulee. While challenging the whole ban on personal solicitation, he's at the same time trying to parse it in this case.
PINCUS: This is mass solicitation via a post on an Internet site and via a letter.
TOTENBERG: The personal solicitation ban, he says, doesn't really protect the integrity of the judicial system in a state where contributions are publicly known.
PINCUS: It's a phony protection because the judge is going to know who gave and who didn't. So in a way, the prohibition creates an illusion of insulation when there isn't any real insulation.
TOTENBERG: Gregory Coleman, president of the Florida Bar, counters that you can't parse the rule so easily.
GREGORY COLEMAN: What they're saying is a judge or a judicial candidate should be able to, under the First Amendment, ask for money from a contributor. It does not look right. It doesn't smell right. It doesn't feel right.
TOTENBERG: Indeed, how would you draw the line, asks Barry Richard, who will represent the Florida Bar in the Supreme Court today.
BARRY RICHARD: When does it become a mass mailing?
TOTENBERG: And similarly, when would a group be big enough that you could make it in-person appeal? Former Chief Justice Anstead says that striking down any portion of the personal solicitation ban would be disastrous in Florida, which is just one generation removed from the worst judicial corruption scandal in the state's history.
In the 1970s, state Supreme Court justices were caught fixing cases on behalf of campaign donors, and even permitting a lobbyist to ghost-write the opinion of the Florida Supreme Court in a public utility's case. In the end, 4 of 7 justices were forced to resign and the state adopted a raft of reforms, including the ban on personal solicitation. Andrew Pincus, however, contends that making judicial candidates do their fundraising through committees stacks the deck for those with connections.
PINCUS: That favors the legal establishment. If you're someone who is not a well-connected lawyer, you may not have well-connected people to put on a committee to do the soliciting for you. You may have to send out letters yourself. And why should that be prohibited?
TOTENBERG: The Bar Association replies that there's nothing in the rule that prevents a candidate from raising money, just from doing it personally. Pincus counters that if the purpose is to prevent corruption, then why are candidates for legislative and executive office permitted to personally solicit campaign contributions? Because they are different, says the Bar's Barry Richard.
RICHARD: They're policymakers and people vote for them and contribute money to them because of the policies they stand for. In the case of the judicial candidate, you have an entirely different concern, which is a requirement for impartiality.
TOTENBERG: Finally, those challenging the personal solicitation ban argue that if a donation does cause the appearance of impropriety or the reality, judges can recuse themselves. In practice, however, most experts say that's a nonstarter, since recusal is largely left to individual judges and can produce unintended consequences. Florida Bar President Coleman.
COLEMAN: Trust me, in rural communitiesm they're all getting their contributions from the same pool, so you could theoretically run through three, four, five, six judges before you could find one that the lawyer did not contribute to. So it could create, literally, chaos within the system.
TOTENBERG: Just what role does money play in judicial elections and decisions? Polls show astonishing majorities of the public, as high as 70 or 80 percent or more, think money influences judges. And scholars have found that there is a relationship between campaign contributions and judicial voting.
TRACEY GEORGE: That is money biases, whether consciously or subconsciously, the recipient's subsequent actions.
TOTENBERG: Tracey George is a law and political science professor at Vanderbilt University. She's among scholars who filed a brief serving the data.
GEORGE: Donors have given to judges who face no opposition. So these donors clearly think there's an impact.
TOTENBERG: Of course, a ban on personal solicitation may not solve that problem.
ANSTEAD: It's true that it is not a perfect way of dealing with it.
TOTENBERG: Former Chief Justice Anstead.
ANSTEAD: We are limited to what we can do because of the great value we place in the First Amendment. But at least we're doing something.
TOTENBERG: The question now is whether the Supreme Court thinks that something is constitutional. Or whether judicial candidates will soon be just like all other candidates in the personal scramble for campaign cash. Nina Totenberg, NPR News, Washington.
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