Williams-Yulee and the anomaly of campaign finance law.

• Author: Lindell, Noah B.

In 2015, the U.S. Supreme Court held in Williams-Yulee v. Florida Bar that states may prohibit candidates for judicial office from personally soliciting campaign donations in order to protect the appearance of judicial integrity. (1) For only the third time in its history, the Court upheld a law subjected to strict scrutiny under the First Amendment's Free Speech Clause. (2) Many commentators noted that the opinion employed a heavily watered-down version of strict scrutiny analysis to reach this result. (3) Indeed, as Justice Alito's dissent stated, the judicial ethics canon at issue was "about as narrowly tailored as a burlap bag." (4) As the decision filters down into the lower courts and into other areas of law, Williams-Yulee s forgiving form of tailoring analysis could unduly dilute what should be the most protective level of judicial scrutiny. There is already some evidence, albeit limited, of such dilution. (5) Taken at face value, then, Williams-Yulees tailoring analysis could fundamentally alter First and Fourteenth Amendment doctrine. (6)

Williams-Yulee was not a fluke. Rather, it was the result of the Court's treatment of many campaign finance regulations as core speech restrictions subject to strict scrutiny. When the overwhelming force of strict scrutiny analysis meets an equally powerful interest, such as judicial integrity, one or the other must fall. The Court ultimately chose to abandon the former. Yet there is a legally sound alternative that the Court did not consider. Instead of struggling within the confines of their strict scrutiny framework, thereby damaging its structure, the Justices should simply have applied a different framework. This Comment argues that the Court could have avoided the First Amendment dilemma in Williams-Yulee--and could prevent similar dilemmas in the future--by deciding campaign finance cases under its broader election law doctrine, rather than its pure First Amendment doctrine. (7)

The Court's analysis of other aspects of the election process--such as ballot access, political party activities, and voting rights--has evolved along a different track from that of campaign finance. In a series of cases, most notably Anderson v. Celehrezze (8) and Burdick v. Takushi, (9) the Supreme Court developed a flexible balancing test to determine the constitutionality of most election regulations. (10) The Burdick test, as this balancing act is sometimes called, is the closest standard the Court has to a Grand Unified Theory of Election Law. (11) By folding campaign finance into the Burdick framework, the Court could decide cases like Williams-Yulee without invoking strict scrutiny, and without creating negative repercussions throughout First and Fourteenth Amendment law.

This Comment enters an existing debate over how courts should analyze campaign finance laws and other election regulations. Judges and authors have noted that the Court has left campaign finance out of the jurisprudential framework for election law cases. (12) Scholars have sparred over whether this situation should be changed and, if so, what campaign finance doctrine should look like. (13) At least two authors have directly advocated for using some form of balancing analysis in campaign finance challenges, though neither proposes using the Burdick test. (14) By explicitly arguing that the Court should fold campaign finance law into the Burdick test, this Comment adds a different perspective to a growing literature debating whether and how to unify the domains of election law. It also provides a new way to examine Williams-Yulee itself. As Williams-Yulee is a relatively new decision, it has not yet generated substantial academic scholarship. Several early commentators lamented the Courts approach to strict scrutiny analysis, but many of them simply argued that the Court should have decided the case the other way. (15) This Comment, by contrast, situates Williams-Yulee in a broader framework, reexamining the divide between the campaign finance and election law doctrines.

This Comment proceeds in two Parts. Part I discusses the Court's ruling in Williams-Yulee and explores how the analysis developed to this point. It then discusses Williams-Yulee's potential to affect First and Fourteenth Amendment cases. Part II lays out an alternative jurisprudential path. It describes how campaign finance law diverged from the rest of election law, explains the modern Burdick test, and shows how the test's application would affect the analysis in Williams-Yulee and other campaign finance cases. Part II also addresses the most common theoretical arguments against using the Burdick test in this area.

1. CAMPAIGN FINANCE AND STRICT SCRUTINY, BEFORE AND AFTER

   WILLIAMS-YULEE

   The Court's opinion in Williams-Yulee is, in some sense, the culmination of a longtime trend. For decades, the Court has treated campaign finance as a pure speech and association issue, rather than as a question of election regulation. (16) During the Roberts Court years, the conservative majority has steadily ratcheted up its scrutiny of campaign finance laws. (17) The regulation at issue in Williams-Yulee posed a problem for the Court's campaign finance doctrine: it served a particularly compelling interest but was not narrowly tailored in the way traditionally required to sustain speech restrictions. To save Florida's solicitation ban, the Court chose to relax its rigid tailoring analysis, a move that will have significant ripple effects throughout First and Fourteenth Amendment law.

   1. The Williams-Yulee Decision

      In 2009, Lanell Williams-Yulee ("Yulee"), a candidate for county court judge in Hillsborough County, sent out a mass mailing. (18) The mailing introduced her to voters, described her qualifications, and asked for "[a]n early contribution of $25, $50, $100, $250, or $500." (19) Yulee also posted the letter on her campaign's website. (20) The Florida Bar filed suit against Yulee, claiming that she violated Florida Canon of Judicial Ethics 7C(1), which prohibits any candidate "for a judicial office that is filled by public election between competing candidates" from "personally soliciting] campaign funds." (21)

      Yulee, however, claimed that Canon 7C(1) was a content-based restriction on her speech, and that preventing her from personally soliciting donations through a mass mailing violated the First Amendment. (22) The Florida Supreme Court, (23) and then the U.S. Supreme Court, (24) agreed with Yulee's characterization of the restriction, but disagreed with her conclusion. Both courts applied strict scrutiny but upheld Canon 7C(1) as a narrowly tailored means of protecting the integrity--and the appearance of integrity--of the judiciary. (25) For the justice system to work, the U.S. Supreme Court reasoned, the public must believe that justice will be dispensed fairly by neutral magistrates. (26) States may foster such public confidence by prohibiting judicial candidates from soliciting campaign donations without violating the First Amendment. (27)

      For a campaign finance case, the Court's reasoning was as unusual as the outcome. The majority cared so deeply about Florida's interest--preserving judicial integrity--that it simply could not conduct the truly "strict" strict scrutiny analysis that the Court typically applies. (28) To reconcile its view of the state interest with the level of scrutiny required by its precedents, the Court emphasized how little Canon 7C(1) burdens judicial candidates' speech. It asserted that the canon "aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary"--solicitation of contributions by judicial candidates themselves. (29) It also noted that the canon applied evenly to all judicial candidates. (30) In the end, the Court insisted that "Canon 7C(1) restricts a narrow slice of speech," (31) giving candidates near-total freedom to receive money through their campaign committees and to speak about political issues. (32) To the majority, it seems, the solicitation ban was simply not a great burden.

   2. Williams-Yulee in Doctrinal Context

      The Court's analysis in Williams-Yulee was so unusual because, under its established First Amendment doctrine, the Court should have struck down Canon 7C(1). For decades, some Justices have advocated for subjecting all campaign finance regulations to strict scrutiny. (33) The Court has refused to go this far, (34) instead enforcing a fundamental divide. Campaign finance laws that directly restrict speech, such as expenditure limits and regulations on candidate communication, receive strict scrutiny and are almost uniformly struck down. (35) Laws that do not impose such "onerous" constraints on speech, such as campaign contribution limits, public financing schemes, and disclosure requirements, are subject to slightly lesser burdens. (36) Contribution limits, for instance, need only be "closely drawn" to serve a "sufficiently important interest." (37)

      While formally maintaining this divide, the Roberts Court has become more willing to impose strict scrutiny, asserting that challenged laws create content- or speaker-based restrictions on speech. For example, in Davis v. FEC, the Court struck down a provision that raised campaign contribution caps for candidates with self-funded opponents; (38) then, in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, it invalidated a law that increased public financing grants in response to privately funded opponents' spending. (39) The Court treated both of these provisions as speaker-based restrictions on the self- or privately financed candidates' speech. (40) And the Court struck down a ban on corporate independent expenditures in Citizens United v. FEC because it "impose[d] restrictions on certain disfavored speakers." (41) Even when it has not applied strict scrutiny, the Court has become increasingly hostile toward campaign finance laws, invalidating the very sorts of...