FAN 58.1 (First Amendment News) Alan Morrison, “Williams-Yulee – The ruling with no real-world impact”
My friend Alan Morrison recently sent me a few short observations he had concerning the new ruling in Williams-Yulle v. Florida State Bar. I thought his comments might be of some interest to FAN readers.
Alan is the Lerner Family Associate Dean for Public Interest & Public Service at George Washington Law School and has argued twenty cases in the Supreme Court, including Virginia Pharmacy Board v. Virginia Citizens Consumer Council (1976) in which he prevailed.
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This was a case that never should have happened. I say this for two reasons, both of which support the proposition that it will not have much impact in judicial elections.
First, one part of petitioner’s original state law defense was that she did not think that the ban on candidate solicitation applied because the Florida rule kicks in only when there are adverse candidates and the incumbent had not yet decided to run again.
Second, the ban only applied if the candidate “personally solicit[ed]” contributions, and most people would not think that a mass mailing and a posting on a website would fall under that ban, especially because the Florida solicitation Rule 4-7.18 (a)(1) expressly distinguishes in person from written communications.
Those “mistakes” are not legal excuses under the law. Nonetheless, they do show that this was not a test case because if one wanted a test case, no such defenses would have been raised. They also suggest that the Florida bar should have simply given petitioner a warning and never filed formal charges against her.
In terms of its real-world impact, the Florida law expressly allows a candidate’s committee to do what petitioner did here and much more. Thus, why would anyone who understands the breadth of the law try an end run? In other words, why take the risk that Ms. Williams-Yulee did when there is a much easier and far safer way to secure campaign cash? The more significant issue, and the one on which the majority of the amicus briefs supporting Florida focused, is whether direct in-person solicitation of contributions violated the First Amendment. Now that written mass mailings and websites from the candidate and not the committee can be proscribed, the in person solicitation ban is plainly constitutional, although one wonders if it would be applied to family members, law partners or college roommates – assuming that the Bar found out about such a case and were silly enough to bring it.
In short, Williams-Yulee is likely to be a one-off decision that will eliminate almost no solicitations that any real candidate, let alone a sitting judge, will want to make in any state with a rule like Florida’s. Thus, aside from not clearing petitioner’s reputation, the decision will not cut back on much in the way of either solicitation or other communication about judicial candidates, meaning that the practical damage to the First Amendment, if any, will be quite modest. Now everything will be funneled through a candidate’s committee, which everyone will understand is really just the judge or lawyer-candidate under an authorized cover.