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SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1499
_________________
LANELL WILLIAMS-YULEE, PETITIONER
v.THE FLORIDA BAR
on writ of certiorari to the supreme court of florida
[April 29, 2015]
Chief Justice Roberts delivered the opinion of the Court, except
as to Part II.
Our Founders vested authority to appoint federal judges in the
President, with the advice and consent of the Senate, and entrusted
those judges to hold their offices during good behavior. The
Constitution permits States to make a different choice, and most of
them have done so. In 39 States, voters elect trial or appellate
judges at the polls. In an effort to preserve public confidence in
the integrity of their judiciaries, many of those States prohibit
judges and judicial candidates from personally soliciting funds for
their campaigns. We must decide whether the First Amendment permits
such restrictions on speech.
We hold that it does. Judges are not politicians, even when they
come to the bench by way of the ballot. And a
State’s decision to elect its judiciary does not
compel it to treat judicial candidates like campaigners for
political office. A State may assure its people that judges will
apply the law without fear or favor—and without
having personally asked anyone for money. We affirm the judgment of
the Florida Supreme Court.
I
A
When Florida entered the Union in 1845, its Constitution
provided for trial and appellate judges to be elected by the
General Assembly. Florida soon followed more than a dozen of its
sister States in transferring authority to elect judges to the
voting public. See J. Shugerman, The People’s
Courts: Pursuing Judicial Independence in America
103–122 (2012). The experiment did not last long
in the Sunshine State. The war came, and
Florida’s 1868 Constitution returned judicial
selection to the political branches. Over time, however, the people
reclaimed the power to elect the state bench: Supreme Court
justices in 1885 and trial court judges in 1942. See Little, An
Overview of the Historical Development of the Judicial Article of
the Flor-ida Constitution, 19 Stetson L. Rev. 1, 40
(1989).
In the early 1970s, four Florida Supreme Court justices resigned
from office following corruption scandals. Florida voters responded
by amending their Constitution again. Under the system now in
place, appellate judges are appointed by the Governor from a list
of candidates proposed by a nominating
committee—a process known as
“merit selection.†Then, every six
years, voters decide whether to retain incumbent appellate judges
for another term. Trial judges are still elected by popular vote,
unless the local jurisdiction opts instead for merit selection.
Fla. Const., Art. V, §10; Hawkins,
Perspective on Judicial Merit Retention in Florida, 64 Fla.
L. Rev. 1421, 1423–1428 (2012).
Amid the corruption scandals of the 1970s, the Florida Supreme
Court adopted a new Code of Judicial Conduct. 281 So. 2d 21 (1973).
In its present form, the first sentence of Canon 1 reads,
“An independent and honorable judiciary is
indispensable to justice in our society.†Code of
Judicial Conduct for the State of Florida 6 (2014). Canon 1
instructs judges to observe “high standards of
conduct†so that “the integrity and
independence of the judiciary may be preserved.â€
Ibid. Canon 2 directs that a judge “shall
act at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary.â€
Id., at 7. Other provisions prohibit judges from lending the
prestige of their offices to private interests, engaging in certain
business transactions, and personally participating in soliciting
funds for nonprofit organizations. Canons 2B, 5C(3)(b)(i), 5D;
id., at 7, 23, 24.
Canon 7C(1) governs fundraising in judicial elections. The
Canon, which is based on a provision in the Ameri-can Bar
Association’s Model Code of Judicial Conduct,
provides:
“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. Such committees are not prohibited from soliciting
campaign contributions and public support from any person or
corporation authorized by law.â€
Id., at 38.
Florida statutes impose additional restrictions on campaign
fundraising in judicial elections. Contributors may not donate more
than $1,000 per election to a trial court candidate or more than
$3,000 per retention election to a Supreme Court justice. Fla.
Stat. §106.08(1)(a) (2014). Campaign committee
treasurers must file periodic reports disclosing the names of
contributors and the amount of each contribution.
§106.07.
Judicial candidates can seek guidance about campaign ethics
rules from the Florida Judicial Ethics Advisory Committee. The
Committee has interpreted Canon 7 to allow a judicial candidate to
serve as treasurer of his own campaign committee, learn the
identity of campaign contributors, and send thank you notes to
donors. An Aid to Understanding Canon 7, pp.
51–58 (2014).
Like Florida, most other States prohibit judicial candidates
from soliciting campaign funds personally, but allow them to raise
money through committees. According to the American Bar
Association, 30 of the 39 States that elect trial or appellate
judges have adopted restrictions similar to Canon 7C(1). Brief for
American Bar Association as
Amicus Curiae 4.
B
Lanell Williams-Yulee, who refers to herself as Yulee, has
practiced law in Florida since 1991. In September 2009, she decided
to run for a seat on the county court for Hillsborough County, a
jurisdiction of about 1.3 million people that includes the city of
Tampa. Shortly after filing paperwork to enter the race, Yulee
drafted a letter announcing her candidacy. The letter described her
experience and desire to “bring fresh ideas and
positive solutions to the Judicial bench.†App. to Pet.
for Cert. 31a. The letter then stated:
“An early contribution of $25, $50, $100,
$250, or $500, made payable to ‘Lanell
Williams-Yulee Campaign for County Judge’, will
help raise the initial funds needed to launch the campaign and get
our message out to the public. I ask for your support [i]n meeting
the primary election fund raiser goals. Thank you in advance for
your support.â€
Id., at 32a.
Yulee signed the letter and mailed it to local voters. She also
posted the letter on her campaign Web site.
Yulee’s bid for the bench did not unfold as
she had hoped. She lost the primary to the incumbent judge. Then
the Florida Bar filed a complaint against her. As relevant here,
the Bar charged her with violating Rule 4–8.2(b)
of the Rules Regulating the Florida Bar. That Rule requires
judicial candidates to comply with applicable provisions of
Florida’s Code of Judicial Conduct, including
the ban on personal solicitation of campaign funds in Canon
7C(1).
Yulee admitted that she had signed and sent the fundraising
letter. But she argued that the Bar could not discipline her for
that conduct because the First Amendment protects a judicial
candidate’s right to solicit campaign funds in
an election.[
1]* The Florida Supreme Court
appointed a referee, who held a hearing and recommended a finding
of guilt. As a sanction, the referee recommended that Yulee be
publicly reprimanded and ordered to pay the costs of the proceeding
($1,860). App. to Pet. for Cert. 19a–25a.
The Florida Supreme Court adopted the
referee’s recommendations. 138
So. 3d 379 (2014). The court explained that Canon 7C(1)
“clearly restricts a judicial
candidate’s speech†and therefore
must be “narrowly tailored to serve a compelling
state interest.â€
Id., at 384. The court held
that the Canon satisfies that demanding inquiry. First, the court
reasoned, prohibiting judicial candidates from personally
soliciting funds furthers Florida’s compelling
interest in “preserving the integrity of [its]
judiciary and maintaining the public’s
confidence in an impartial judiciary.â€
Ibid.
(internal quotation marks omitted; alteration in original). In the
court’s view, “personal
solicitation of campaign funds, even by mass mailing, raises an
appearance of impropriety and calls into question, in the
public’s mind, the judge’s
impartiality.â€
Id., at 385. Second, the court
concluded that Canon 7C(1) is narrowly tailored to serve that
compelling interest because it
“ ‘insulate[s]
judicial candidates from the solicitation and receipt of funds
while leaving open, ample alternative means for candidates to raise
the resources necessary to run their
campaigns.’ â€
Id., at 387 (quoting
Simes v.
Arkansas Judicial
Discipline & Disability Comm’n, 368 Ark.
577, 588, 247 S. W. 3d 876, 883 (2007)).
The Florida Supreme Court acknowledged that some Federal Courts
of Appeals—“whose judges have
lifetime appointments and thus do not have to engage in
fundraisingâ€â€”had invalidated
restrictions similar to Canon 7C(1). 138 So. 3d, at 386,
n. 3. But the court found it persuasive that every
State Supreme Court that had considered similar fundraising
provisions—along with several Fed-eral Courts of
Appeals—had upheld the laws against First
Amendment challenges.
Id., at 386.
Florida’s chief justice and one associate
justice dissented.
Id., at 389. We granted certiorari. 573
U. S. ___ (2014).
II
The First Amendment provides that Congress
“shall make no law . . .
abridging the freedom of speech.†The Fourteenth
Amendment makes that prohibition applicable to the States.
Stromberg v.
California,283 U. S. 359,368
(1931). The parties agree that Canon 7C(1) restricts
Yulee’s speech on the basis of its content by
prohibiting her from soliciting contributions to her election
campaign. The parties disagree, however, about the level of
scrutiny that should govern our review.
We have applied exacting scrutiny to laws restricting the
solicitation of contributions to charity, upholding the speech
limitations only if they are narrowly tailored to serve a
compelling interest. See
Riley v.
National Federation of
Blind of N. C., Inc.,487 U. S. 781,798 (1988);
id., at 810 (Rehnquist, C. J., dissenting). As
we have explained, noncommercial solicitation
“is characteristically intertwined with
informative and perhaps persuasive speech.â€
Id.,
at 796 (majority opinion) (quoting
Schaumburg v.
Citizens
for Better Environment,444 U. S. 620,632 (1980)).
Applying a lesser standard of scrutiny to such speech would
threaten “the exercise of rights so vital to the
maintenance of democratic institutions.â€
Schneider v.
State (Town of Irvington),308
U. S. 147,161 (1939).
The principles underlying these charitable solicitation cases
apply with even greater force here. Before asking for money in her
fundraising letter, Yulee explained her fitness for the bench and
expressed her vision for the judiciary. Her stated purpose for the
solicitation was to get her “message out to the
public.†App. to Pet. for Cert. 32a. As we have long
recognized, speech about public issues and the qualifications of
candidates for elected office commands the highest level of First
Amendment protection. See
Eu v.
San Francisco County
Democratic Central Comm.,489 U. S. 214,223 (1989).
Indeed, in our only prior case concerning speech restrictions on a
candidate for judicial office, this Court and both parties assumed
that strict scrutiny applied.
Republican Party of Minn. v.
White,536 U. S. 765,774 (2002).
Although the Florida Supreme Court upheld Canon 7C(1) under
strict scrutiny, the Florida Bar and several
amici contend
that we should subject the Canon to a more permissive standard:
that it be “closely drawn†to match
a “sufficiently important interest.â€
Buckley v.
Valeo,424 U. S. 1,25 (1976)
(
per curiam). The “closely
drawn†standard is a poor fit for this case. The Court
adopted that test in
Buckley to address a claim that
campaign contribution limits violated a
contributor’s “freedom of
political association.â€
Id., at
24–25. Here, Yulee does not claim that Canon
7C(1) violates her right to free association; she argues that it
violates her right to free speech. And the Florida Bar can hardly
dispute that the Canon infringes Yulee’s freedom
to discuss candidates and public issues—namely,
herself and her qualifications to be a judge. The
Bar’s call to import the
“closely drawn†test from the
contribution limit context into a case about solicitation therefore
has little avail.
As several of the Bar’s
amici note, we
applied the “closely drawn†test to
solicitation restrictions in
McConnell v.
Federal
Election Comm’n,540 U. S. 93,136
(2003), overruled in part by
Citizens United v.
Federal
Election Comm’n,558 U. S. 310
(2010). But the Court in that case determined that the solicitation
restrictions operated primarily to prevent circumvention of the
contribution limits, which were the subject of the
“closely drawn†test in the first
place. 540 U. S., at 138–139.
McConnell offers no help to the Bar here, because Florida
did not adopt Canon 7C(1) as an anticircumvention measure.
In sum, we hold today what we assumed in
White: A State
may restrict the speech of a judicial candidate only if the
restriction is narrowly tailored to serve a compelling
interest.
III
The Florida Bar faces a demanding task in defending Canon 7C(1)
against Yulee’s First Amendment challenge. We
have emphasized that “it is the rare
case†in which a State demonstrates that a speech
restriction is narrowly tailored to serve a compelling interest.
Burson v.
Freeman,504 U. S. 191,211
(1992) (plurality opinion). But those cases do arise. See
ibid.;
Holder v.
Humanitarian Law Project,561
U. S. 1–39 (2010);
McConnell,
540 U. S., at 314 (opinion of Kennedy, J.); cf.
Adarand Constructors, Inc. v.
Peña,515
U. S. 200,237 (1995) (“we wish to
dispel the notion that strict scrutiny is
‘strict in theory, but fatal in
fact’ â€). Here, Canon
7C(1) advances the State’s compelling interest
in preserving public confidence in the integrity of the judiciary,
and it does so through means narrowly tailored to avoid
unnecessarily abridging speech. This is therefore one of the rare
cases in which a speech restriction withstands strict scrutiny.
A
The Florida Supreme Court adopted Canon 7C(1) to promote the
State’s interests in
“protecting the integrity of the
judiciary†and “maintaining the
public’s confidence in an impartial
judiciary.†138 So. 3d, at 385. The way the Canon
advances those interests is intuitive: Judges, charged with
exercising strict neutrality and independence, cannot supplicate
campaign donors without diminishing public confidence in judicial
integrity. This principle dates back at least eight centuries to
Magna Carta, which proclaimed, “To no one will
we sell, to no one will we refuse or delay, right or
justice.†Cl. 40 (1215), in W. McKechnie, Magna Carta,
A Commentary on the Great Charter of King John 395 (2d ed. 1914).
The same concept underlies the common law judicial oath, which
binds a judge to “do right to all manner of
people . . . without fear or favour,
affection or ill-will,†10 Encyclopaedia of the Laws of
England 105 (2d ed. 1908), and the oath that each of us took to
“administer justice without respect to persons,
and do equal right to the poor and to the rich,â€28
U. S. C. §453. Simply put,
Florida and most other States have concluded that the public may
lack confidence in a judge’s ability to
administer justice without fear or favor if he comes to office by
asking for favors.
The interest served by Canon 7C(1) has firm support in our
precedents. We have recognized the “vital state
interest†in safeguarding “public
confidence in the fairness and integrity of the
nation’s elected judges.â€
Caperton v.
A. T. Massey Coal Co.,556
U. S. 868,889 (2009) (internal quotation marks
omitted). The importance of public confidence in the integrity of
judges stems from the place ofthe judiciary in the government.
Unlike the executive or the legislature, the judiciary
“has no influence over either the sword or the
purse; . . . neither force nor will but
merely judgment.†The Federalist No. 78, p. 465 (C.
Rossiter ed. 1961) (A. Hamilton) (capitalization altered). The
judiciary’s authority therefore depends in large
measure on the public’s willingness to respect
and follow its decisions. As Justice Frankfurter once put it for
the Court, “justice must satisfy the appearance
of justice.â€
Offutt v.
United States,348
U. S. 11,14 (1954). It follows that public perception
of judicial integrity is “a state interest of
the highest order.â€
Caperton, 556
U. S., at 889 (quoting
White, 536
U. S., at 793 (Kennedy, J., concurring)).
The principal dissent observes that bans on judicial candidate
solicitation lack a lengthy historical pedigree.
Post, at
1–2 (opinion of Scalia, J.). We do not dispute
that fact, but it has no relevance here. As the precedent cited by
the principal dissent demonstrates, a history and tradition of
regulation are important factors in determining whether to
recognize “new categories of unprotected
speech.â€
Brown v.
Entertainment Merchants
Assn., 564 U. S. ___, ___ (2011) (slip op., at 3);
see
post, at 1. But nobody argues that solicitation of
campaign funds by judicial candidates is a category of unprotected
speech. As explained above, the First Amendment fully applies to
Yulee’s speech. The question is instead whether
that Amendment permits the particular regulation of speech at issue
here.
The parties devote considerable attention to our cases analyzing
campaign finance restrictions in political elections. But a
State’s interest in preserving public confidence
in the integrity of its judiciary extends beyond its interest in
preventing the appearance of corruption in legislative and
executive elections. As we explained in
White, States may
regulate judicial elections differently than they regulate
political elections, because the role of judges differs from the
role of politicians. 536 U. S., at 783;
id., at
805 (Ginsburg, J., dissenting). Politicians are expected to be
appropriately responsive to the preferences of their supporters.
Indeed, such “responsiveness is key to the very
concept of self-governance through elected officials.â€
McCutcheon v.
Federal Election
Comm’n, 572 U. S. ___, ___
(2014) (plurality opinion) (slip op., at 39). The same is not true
of judges. In deciding cases, a judge is not to follow the
preferences of his supporters, or provide any special consideration
to his campaign donors. A judge instead must
“observe the utmost fairness,â€
striving to be “perfectly and completely
independent, with nothing to influence or controul him but God and
his conscience.†Address of John Marshall, in
Proceedings and Debates of the Virginia State Convention of
1829–1830, p. 616 (1830). As in
White,
therefore, our precedents applying the First Amendment to political
elections have little bearing on the issues here.
The vast majority of elected judges in States that allow
personal solicitation serve with fairness and honor. But
“[e]ven if judges were able to refrain from
favoring donors, the mere possibility that
judges’ decisions may be moti-vated by the
desire to repay campaign contributions is likely to undermine the
public’s confidence in the
judiciary.â€
White, 536 U. S., at 790
(O’Connor, J., concurring). In the eyes of the
public, a judge’s personal solicitation could
result (even unknowingly) in “a possible
temptation . . . which might lead him not
to hold the balance nice, clear and true.â€
Tumey
v.
Ohio,273 U. S. 510,532 (1927). That risk is
especially pronounced because most donors are lawyers and litigants
who may appear before the judge they are supporting. See A. Bannon,
E. Velasco, L. Casey, & L. Reagan, The New Politics of Judicial
Elections: 2011–12, p. 15 (2013).
The concept of public confidence in judicial integrity does not
easily reduce to precise definition, nor does it lend itself to
proof by documentary record. But no one denies that it is genuine
and compelling. In short, it is the regrettable but unavoidable
appearance that judges who personally ask for money may diminish
their integrity that prompted the Supreme Court of Florida and most
other States to sever the direct link between judicial candidates
and campaign contributors. As the Supreme Court of Oregon
explained, “the spectacle of lawyers or
potential litigants directly handing over money to judicial
candidates should be avoided if the public is to have faith in the
impartiality of its judiciary.â€
In re
Fadeley, 310 Ore. 548, 565, 802 P. 2d 31, 41
(1990). Moreover, personal solicitation by a judicial candidate
“inevitably places the solicited individuals in
a position to fear retaliation if they fail to financially support
that candidate.â€
Simes, 368 Ark., at 585, 247
S. W. 3d, at 882. Potential litigants then fear that
“the integrity of the judicial system has been
compromised, forcing them to search for an attorney in part based
upon the criteria of which attorneys have made the obligatory
contributions.â€
Ibid. A
State’s decision to elect its judges does not
require it to tolerate these risks. The Florida
Bar’s interest is compelling.
B
Yulee acknowledges the State’s compelling
interest in judicial integrity. She argues, however, that the
Canon’s failure to restrict other speech equally
damaging to judicial integrity and its appearance undercuts the
Bar’s position. In particular, she notes that
Canon 7C(1) allows a judge’s campaign committee
to solicit money, which arguably reduces public confidence in the
integrity of the judiciary just as much as a
judge’s personal solicitation. Yulee also points
out that Florida permits judicial candidates to write thank you
notes to campaign donors, which ensures that candidates know who
contributes and who does not.
It is always somewhat counterintuitive to argue that a law
violates the First Amendment by abridging
too little speech.
We have recognized, however, that underinclusiveness can raise
“doubts about whether the government is in fact
pursuing the interest it invokes, rather than disfavoring a
particular speaker or viewpoint.â€
Brown, 564
U. S., at ___ (slip op., at 14). In a textbook
illustration of that principle, we invalidated a
city’s ban on ritual animal sacrifices because
the city failed to regulate vast swaths of conduct that similarly
diminished its asserted interests in public health and animal
welfare.
Church of Lukumi Babalu Aye, Inc. v.
Hialeah,508 U. S. 520–547
(1993).
Underinclusiveness can also reveal that a law does not actually
advance a compelling interest. For example, a
State’s decision to prohibit newspapers, but not
electronic media, from releasing the names of juvenile defendants
suggested that the law did not advance its stated purpose of
protecting youth privacy.
Smith v.
Daily Mail Publishing
Co.,443 U. S. 97–105 (1979).
Although a law’s underinclusivity raises a
red flag, the First Amendment imposes no freestanding
“underinclusiveness limitation.â€
R. A. V. v.
St. Paul,505
U. S. 377,387 (1992) (internal quotation marks
omitted). A State need not address all aspects of a problem in one
fell swoop; policymakers may focus on their most pressing concerns.
We have accordingly upheld laws—even under
strict scrutiny—that conceivably could have
restricted even greater amounts of speech in service of their
stated interests.
Burson, 504 U. S., at 207; see
McConnell, 540 U. S., at
207–208;
Metromedia, Inc. v.
San
Diego,453 U. S. 490–512 (1981)
(plurality opinion);
Buckley, 424 U. S., at
105.
Viewed in light of these principles, Canon 7C(1) raises no fatal
underinclusivity concerns. The solicitation ban aims squarely at
the conduct most likely to undermine public confidence in the
integrity of the judiciary: personal requests for money by judges
and judicial candidates. The Canon applies evenhandedly to all
judges and judicial candidates, regardless of their viewpoint or
chosen means of solicitation. And unlike some laws that we have
found impermissibly underinclusive, Canon 7C(1) is not riddled with
exceptions. See
City of Ladue v.
Gilleo,512
U. S. 43–53 (1994). Indeed, the
Canon contains zero exceptions to its ban on personal
solicitation.
Yulee relies heavily on the provision of Canon 7C(1) that allows
solicitation by a candidate’s campaign
committee. But Florida, along with most other States, has
reasonably concluded that solicitation by the candidate personally
creates a categorically different and more severe risk of
undermining public confidence than does solicitation by a campaign
committee. The identity of the solicitor matters, as anyone who has
encountered a Girl Scout selling cookies outside a grocery store
can attest. When the judicial candidate himself asks for money, the
stakes are higher for all involved. The candidate has personally
invested his time and effort in the fundraising appeal; he has
placed his name and reputation behind the request. The solicited
individual knows that, and also knows that the solicitor might be
in a position to singlehandedly make decisions of great weight: The
same person who signed the fundraising letter might one day sign
the judgment. This dynamic inevitably creates pressure for the
recipient to comply, and it does so in a way that solicitation by a
third party does not. Just as inevitably, the personal involvement
of the candidate in the solicitation creates the public appearance
that the candidate will remember who says yes, and who says no.
In short, personal solicitation by judicial candidates
implicates a different problem than solicitation by campaign
committees. However similar the two solicitations may be in
substance, a State may conclude that they present markedly
different appearances to the public. Florida’s
choice to allow solicitation by campaign commit-tees does not
undermine its decision to ban solicitation by judges.
Likewise, allowing judicial candidates to write thank you notes
to campaign donors does not detract from the
State’s interest in preserving public confidence
in the integrity of the judiciary. Yulee argues that permitting
thank you notes heightens the likelihood of actual bias by ensuring
that judicial candidates know who supported their campaigns, and
ensuring that the supporter knows that the candidate knows. Maybe
so. But the State’s compelling interest is
implicated most directly by the candidate’s
personal solicitation itself. A failure to ban thank you notes for
contributions not solicited by the candidate does not undercut the
Bar’s rationale.
In addition, the State has a good reason for allowing candidates
to write thank you notes and raise money through committees. These
accommodations reflect Flor-ida’s effort to
respect the First Amendment interests of candidates and their
contributors—to resolve the
“fundamental tension between the ideal character
of the judicial office and the real world of electoral
politics.â€
Chisom v.
Roemer,501
U. S. 380,400 (1991). They belie the principal
dissent’s suggestion that Canon 7C(1) reflects
general “hostility toward judicial
campaigning†and has “nothing to do
with the appearances created by judges’ asking
for money.â€
Post, at 11. Nothing?
The principal dissent also suggests that Canon 7C(1) is
underinclusive because Florida does not ban judicial candidates
from asking individuals for personal gifts or loans.
Post,
at 10. But Florida law treats a personal
“gift†or
“loan†as a campaign contribution if
the donor makes it “for the purpose of
influencing the results of an election,†Fla. Stat.
§106.011(5)(a), and Florida’s
Judicial Qualifications Commission has determined that a judicial
candidate violates Canon 7C(1) by personally soliciting such a
loan. See
In re Turner, 76 So. 3d 898,
901–902 (Fla. 2011). In any event, Florida can
ban personal solicitation of campaign funds by judicial candidates
without making them obey a comprehensive code to leading an ethical
life. Underinclusivity creates a First Amendment concern when the
State regulates one aspect of a problem while declining to regulate
a different aspect of the problem that affects its stated interest
in a comparable way. See
Flor-ida Star v.
B. J. F.,491 U. S.
524,540 (1989). The principal dissent offers no basis to conclude
that judicial candidates are in the habit of soliciting personal
loans, football tickets, or anything of the sort.
Post, at
10. Even under strict scrutiny, “[t]he First
Amendment does not require States to regulate for problems that do
not exist.â€
Burson, 504 U. S., at
207 (State’s regulation of political
solicitation around a polling place, but not charitable or
commercial solicitation, was not fatally underinclusive under
strict scrutiny).
Taken to its logical conclusion, the position advanced by Yulee
and the principal dissent is that Florida may ban the solicitation
of funds by judicial candidates only if the State bans
all
solicitation of funds in judicial elections. The First Amendment
does not put a State to that all-or-nothing choice. We will not
punish Florida for leaving open more, rather than fewer, avenues of
expression, especially when there is no indication that the
selective restriction of speech reflects a pretextual motive.
C
After arguing that Canon 7C(1) violates the First Amendment
because it restricts too little speech, Yulee argues that the Canon
violates the First Amendment because it restricts too much. In her
view, the Canon is not narrowly tailored to advance the
State’s compelling interest through the least
restrictive means. See
United States v.
Playboy
Entertainment Group, Inc.,529 U. S. 803,813
(2000).
By any measure, Canon 7C(1) restricts a narrow slice of speech.
A reader of Justice Kennedy’s dissent could be
forgiven for concluding that the Court has just upheld a latter-day
version of the Alien and Sedition Acts, approving
“state censorship†that
“locks the First Amendment out,â€
imposes a “gag†on candidates, and
inflicts “dead weight†on a
“silenced†public debate.
Post, at 2–4. But in reality, Canon 7C(1)
leaves judicial candidates free to discuss any issue with any
person at any time. Candidates can write letters, give speeches,
and put up billboards. They can contact potential supporters in
person, on the phone, or online. They can promote their campaigns
on radio, television, or other media. They cannot say,
“Please give me money.†They can,
however, direct their campaign committees to do so. Whatever else
may be said of the Canon, it is surely not a
“wildly disproportionate restriction upon
speech.â€
Post, at 1 (Scalia, J.,
dissenting).
Indeed, Yulee concedes—and the principal
dissent seems to agree,
post, at
8
—that Canon 7C(1) is valid in numerous
applications. Yulee acknowledges that Florida can prohibit judges
from soliciting money from lawyers and litigants appearing before
them. Reply Brief 18. In addition, she says the State
“might†be able to ban
“direct one-to-one solicitation of lawyers and
individuals or businesses that could reasonably appear in the court
for which the individual is a candidate.â€
Ibid.
She also suggests that the Bar could forbid “in
person†solicitation by judicial candidates. Tr. of
Oral Arg. 7; cf.
Ohralik v.
Ohio State Bar Assn.,436
U. S. 447 (1978) (permitting State to ban in person
solicitation of clients by lawyers). But Yulee argues that the
Canon cannot constitutionally be applied to her chosen form of
solicitation: a letter posted online and distributed via mass
mailing. No one, she contends, will lose confidence in the
integrity of the judiciary based on personal solicitation to such a
broad audience.
This argument misperceives the breadth of the compelling
interest that underlies Canon 7C(1). Florida has reasonably
determined that personal appeals for money by a judicial candidate
inherently create an appearance of impropriety that may cause the
public to lose confidence in the integrity of the judiciary. That
interest may be implicated to varying degrees in particular
contexts, but the interest remains whenever the public perceives
the judge personally asking for money.
Moreover, the lines Yulee asks us to draw are unwork-able. Even
under her theory of the case, a mass mailing would create an
appearance of impropriety if addressed to a list of all lawyers and
litigants with pending cases. So would a speech soliciting
contributions from the 100 most frequently appearing attorneys in
the jurisdiction. Yulee says she might accept a ban on one-to-one
solicitation, but is the public impression really any different if
a judicial candidate tries to buttonhole not one prospective donor
but two at a time? Ten? Yulee also agrees that in person
solicitation creates a problem. But would the
public’s concern recede if the request for money
came in a phone call or a text message?
We decline to wade into this swamp. The First Amendment requires
that Canon 7C(1) be narrowly tailored, not that it be
“perfectly tailored.â€
Burson,
504 U. S., at 209. The impossibility of perfect
tailoring is especially apparent when the
State’s compelling interest is as intangible as
public confidence in the integrity of the judiciary. Yulee is of
course correct that some personal solicitations raise greater
concerns than others. A judge who passes the hat in the courthouse
creates a more serious appearance of impropriety than does a
judicial candidate who makes a tasteful plea for support on the
radio. But most problems arise in greater and lesser gradations,
and the First Amendment does not confine a State to addressing
evils in their most acute form. See
id., at 210. Here,
Florida has concluded that all personal solicitations by judicial
candidates create a public appearance that undermines confidence in
the integrity of the judiciary; banning all personal solicitations
by judicial candidates is narrowly tailored to address that
concern.
In considering Yulee’s tailoring arguments,
we are mindful that most States with elected judges have determined
that drawing a line between personal solicitation by candidates and
solicitation by committees is necessary to preserve public
confidence in the integrity of the judiciary. These considered
judgments deserve our respect, especially because they reflect
sensitive choices by States in an area central to their own
governance—how to select those who
“sit as their judges.â€
Gregory v.
Ashcroft,501 U. S. 452,460
(1991).
Finally, Yulee contends that Florida can accomplish its
compelling interest through the less restrictive means of recusal
rules and campaign contribution limits. We dis-agree. A rule
requiring judges to recuse themselves from every case in which a
lawyer or litigant made a campaign contribution would disable many
jurisdictions. And a flood of postelection recusal motions could
“erode public confidence in judicial
impartiality†and thereby exacerbate the very
appearance problem the State is trying to solve.
Caperton,
556 U. S., at 891 (Roberts, C. J.,
dissenting). Moreover, the rule that Yulee envisions could create a
perverse incentive for litigants to make campaign contributions to
judges solely as a means to trigger their later
recusal—a form of peremptory strike against a
judge that would enable transparent forum shopping.
As for campaign contribution limits, Florida already applies
them to judicial elections. Fla. Stat. §106.08(1)(a). A
State may decide that the threat to public confidence created by
personal solicitation exists apart from the amount of money that a
judge or judicial candidate seeks. Even if Florida decreased its
contribution limit, the ap-pearance that judges who personally
solicit funds might improperly favor their campaign donors would
remain. Although the Court has held that contribution limits
advance the interest in preventing
quid pro quo corruption
and its appearance in political elections, we have never held that
adopting contribution limits precludes a State from pursuing its
compelling interests through additional means. And in any event, a
State has compelling interests in regulating judicial elections
that extend beyond its interests in regulating political elections,
because judges are not politicians.
In sum, because Canon 7C(1) is narrowly tailored to serve a
compelling government interest, the First Amendment poses no
obstacle to its enforcement in this case. As a result of our
decision, Florida may continue to prohibit judicial candidates from
personally soliciting campaign funds, while allowing them to raise
money through committees and to otherwise communicate their
electoral messages in practically any way. The principal dissent
faults us for not answering a slew of broader questions, such as
whether Florida may cap a judicial candidate’s
spending or ban independent expenditures by corporations.
Post, at 8–9. Yulee has not asked these
questions, and for good reason—they are far
afield from the narrow regulation actually at issue in this
case.
We likewise have no cause to consider whether the citizens of
States that elect their judges have decided anything about the
“oracular sanctity of judges†or
whether judges are due “a hearty helping of
humble pie.â€
Post,at 12. The principal dissent
could be right that the decision to adopt judicial elections
“probably springs,†at least in
part, from a desire to make judges more accountable to the public,
ibid., although the history on this matter is more
complicated. See J. Shugerman, The People’s
Courts, at 5 (arguing that States adopted judicial elections to
increase judicial independence). In any event, it is a long way
from general notions of judicial accountability to the principal
dissent’s view, which evokes nothing so much as
Delacroix’s painting of Liberty leading a
determined band of
citoyens, this time against a robed
aristocracy scurrying to shore up the ramparts of the judicial
castle through disingenuous ethical rules. We claim no similar
insight into the People’s passions, hazard no
assertions about ulterior motives of those who promulgated Canon
7C(1), and firmly reject the charge of a deceptive
“pose of neutrality†on the part of
those who uphold it.
Post, at 12.
*  *  *
The desirability of judicial elections is a question that has
sparked disagreement for more than 200 years. Hamilton believed
that appointing judges to positions with life tenure constituted
“the best expedient which can be devised in any
government to secure a steady, upright, and impartial
administration of the laws.†The Federalist No. 78, at
465. Jefferson thought that making judges
“dependent on none but themselvesâ€
ran counter to the principle of “a government
founded on the public will.†12 The Works of Thomas
Jefferson 5 (P. Ford ed. 1905). The federal courts reflect the view
of Hamilton; most States have sided with Jefferson. Both methods
have given our Nation jurists of wisdom and rectitude who have
devoted themselves to maintaining “the
public’s respect . . .
and a reserve of public goodwill, without becoming subservient to
public opinion.†Rehnquist, Judicial Independence, 38
U. Rich. L. Rev. 579, 596 (2004).
It is not our place to resolve this enduring debate. Our limited
task is to apply the Constitution to the question presented in this
case. Judicial candidates have a First Amendment right to speak in
support of their campaigns. States have a compelling interest in
preserving public confidence in their judiciaries. When the State
adopts a narrowly tailored restriction like the one at issue here,
those principles do not conflict. A State’s
decision to elect judges does not compel it to compromise public
confidence in their integrity.
The judgment of the Florida Supreme Court is
Affirmed.