The Elected Judiciary and Campaign Finance

Today, the Court upheld the Florida Supreme Court’s rule that candidates for judicial elections cannot solicit funds. Another interesting element of the case is that it’s the second appearance of the Sebelius tax power coalition — Roberts joined the four Democratic nominees as the swing vote. Roberts’s opinion for the Court had an amusing passage about the hysteria Kennedy’s dissent applied to this very modest rule:

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,” imposes a “gag” on candidates, and inflicts “dead weight” on a “silenced” public debate. 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.”

Ginsburg’s concurrence outlines a standard for evaluating restrictions on judicial elections that makes more sense going forward, but it’s good that Florida was given at least a little leeway here.