Today was oral argument in the Williams-Yulee case, and Howard rounds up the press coverage. Here is the oral argument transcript. The case concerns the constitutionality of Florida’s ban on judicial candidates personally soliciting campaign contributions. I haven’t weighed in much on this case, mostly because I’ve been busy with other projects, including my campaign finance book project. But here are a few thoughts.
1. There’s been an interesting debate between Bob Bauer and the Brennan Center over whether this is a big case or a small case. I think the ruling one way or another on the solicitations questions itself is not going to make much of a difference, for reasons Adam Bonin gives. There’s just not that much at stake—we need far more major changes to judicial elections if we are going to deal with the problem of money flowing into them.
2. That said, I think there is a lot at stake in how the Court decides Williams-Yulee. If the Court goes the way that Justice Ginsburg pushed at oral argument—to recognize that it is permissible to have different rules for judicial elections compared to normal elections—that would go a long way toward giving lower courts the ability to uphold a host of other judicial campaign laws which do matter and which can and have been subject to judicial challenge. On the other hand, if the Court follows the Chief Justice’s apparent view that once you choose to elect your judges, the full First Amendment protections for campaigning and political activities apply to judicial candidates, we could end up with strict scrutiny and lots of other, more important judicial campaign laws getting struck down. I’d hate to think that this case could lead a court to strike down a judicial canon barring judicial candidates from promising how they would vote on particular issues or cases, for example.
3. From the transcript, it is hard to see how this law survives, given how full of holes the solicitation rules are. It could happen, but it would take some major efforts on the part of Justice Kennedy (the likely median Justice in this case). Although the oral argument comments of Kennedy were not crystal clear on where he will come out, he seemed quite skeptical. It is possible, though, to write a narrow opinion that avoids deciding major issues, or messing with the level of scrutiny. That might be the best that supporters of judicial campaign limitations may hope for at this point, and a very narrow opinion might even avoid the potential 5-4 split in this case, as we saw in the last of these cases, Republican Party of Minn. v. White.