Supreme Court Examines Gray Area In Judicial Campaigning
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The U.S. Supreme Court heard arguments today in a case that tests whether states may ban judicial candidates from personally soliciting campaign contributions. For years the high court's conservative majority has been dismantling campaign-finance laws that apply to the legislative and executive branches of government. Today's challenge is the first that takes aim at the judicial branch. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Thirty-nine states elect some or all of their judges and 30 of them bar personal solicitations by judicial candidates in order to preserve judicial impartiality. If the Supreme Court treats those bans the same way it's treated other funding limits, the personal solicitation bans are doomed by a 5-to-4 vote. In those earlier cases, Justice Anthony Kennedy led the charge to abolish funding limits for legislative and executive candidates. But Kennedy has long been a strong advocate of maintaining a judiciary free from outside influences. Kennedy's questions today gave mixed signals about his views on the solicitation ban.
Arguing against Florida's ban, lawyer Andrew Pincus told the justices today that it violates the Constitution's free speech guarantee. He said the ban might be justified for one-on-one, in-person solicitations, but not for mass mailings.
Justice Kennedy - but a ban on face-to-face solicitations has all sorts of gradations. What about a personal, one-on-one letter? How's that different? And then a letter to five people?
Lawyer Pincus replied that the court has in other contexts drawn a line between written and oral communications.
Chief Justice Roberts - well, if we meet somewhere and I hand you a written request for a contribution, is that written or oral?
Justice Ginsburg - suppose the state's view is that we want our judiciary to be above the political fray?
Answer - when a state chooses to elect judges instead of using some appointment mechanism, the same rules apply to the judicial elections as all other elections.
A second problem with the Florida law, said Pincus, is that it allows judges to know who gave contributions to their election committees.
Justice Kennedy - well, how can the judge not know, especially in states with public disclosure? Everyone else reads the list but he doesn't? That seems to me to be unworkable.
All these Kennedy questions clearly suggested the justice believes it's very difficult to draw a more limited line than Florida has drawn. But it remained unclear whether he thinks any line is permissible that would limit judicial candidates. When lawyer Pincus tried to bolster his challenge by noting that Florida's judicial candidates are permitted to send thank you notes to contributors, Justices Sotomayor and Breyer scoffed. A thank you note is a form of politeness, said Breyer, that doesn't put the same pressure on a lawyer to give. In contrast, when a judge asks a lawyer to do something, the answer is almost invariably yes. But a lawyer feels much more free to say no to a campaign manager.
Justice Sotomayor - the proof is in the pudding. In states where judicial candidates can personally solicit contributions, they raise much more money than in other states.
Justice Kennedy was silent for the second half of the argument when the Florida bar's Barry Richard defended the personal solicitation ban. The other conservatives, with the exception of the always silent Justice Thomas, took turns taking whacks at Richard. Chief Justice Roberts pressed him repeatedly, asking what interest is served by the solicitation ban. Richard replied that the state's interest is in protecting the impartiality of the courts and preventing quid pro quo corruption. Justice Breyer pointed to the Magna Carta; justice shall not be sold nor shall it be denied.
That's at least 800 years old, he observed.
Chief Justice Roberts shot back, 800 years ago judges were not elected.
Nina Totenberg, NPR News, Washington.
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