Justice Thomas' masterful dissent in Whole Woman’s Health v. Hellerstedt skewers the Court's arbitrary use of tiers of review.
This week the Supreme Court heard argument in Williams-Yulee v. The Florida Bar. The case is the sixth campaign finance case heard by the Roberts Court but the first to focus on judicial elections. The Florida bar disciplined Ms. Williams-Yulee for sending a letter to solicit contributions for her campaign for election as a Florida trial judge. The bar found her solicitation to violate a rule of the Florida Code of Judicial Conduct that barred personal solicitation of campaign contributions.
A central doctrinal question in the case is whether the Court will apply its overinclusiveness/under inclusiveness test to these regulations. The Court in First Amendment cases typically assesses whether the legislative solution offered by a statute fits the problem by asking whether it is underinclusive or overinclusive. One way of understanding this test is that a focus on the fit between the proffered purpose of the regulation and its scope helps to ferret out pretext, uncovering regulation that claims to solve a problem but is directed at impermissible objective. If the regulation is underinclusive with respect to its objective, it suggests that regulation is pretextual because it does not solve the problem. If it is overinclusive, it suggests that it is burdening more speech rights than is necessary because it applies regardless of whether the rationale for the legislation is present.
Assuming that the government interest is to avoid corruption or appearance of corruption, preventing solicitation by personal letter is both over and underinclusive. It is overinclusive, because it sweeps in solicitations sent to friends and college classmates who have no business before the court. It is underinclusive, because the regulations permit committees to send letters on the judges’ behalf and get judges to write personal thank you notes to those who contribute. Much of the oral argument focused on such questions.
In Citizens United the Court applied an over/underinclusiveness test to spending for electoral messaging. The Court rejected the argument that banning corporations from electoral messaging protected minority shareholders, because the prohibition covered even closely held corporations with one or two shareholders and was thus overinclusive. In the past, however, the Court has not applied as stringent a review to contribution limitations as it does to limitations on limits on electoral messaging, because it has held that contributions are less closely connected to expression than is electoral messaging.
Nevertheless, I think it likely that the Court will apply the over/underinclusiveness test here for two reasons. First, last year in McCutcheon v. FEC, the Court applied a less restrictive means test—a close cousin of the over/underinclusivenss test—to conclude that that there were less draconian ways of preventing people from circumventing individual contribution limits than by imposing a ceiling on total contributions. Second, the restriction here is not on the amount solicited but on the manner of solicitation—a matter the Court is likely to believe closer to the core of political expression.
By applying the over/underinclusiveness test the Court will be continuing a general trend in its application of the First Amendment to campaign finance regulation-applying doctrines built up over the years in many First Amendment contexts to the electoral context. If it does so, the Roberts Court is again to be applauded for following neutral principles rather than making up First Amendment law in this area according to its policy preferences.