Cross-posted on The National Law Journal
In a decision handed down on April 29 in Williams-Yulee v. Florida Bar, the U.S. Supreme Court upheld limits on the ability of judicial candidates to personally solicit campaign contributions, recognizing that such common-sense rules are often necessary to safeguard the integrity of the judiciary. The overwhelming consensus among commentators is that this result will have little if any short-term impact on the court's broader treatment of efforts to regulate money in politics, which it eviscerated in Citizens United and other cases.
For now, this conventional wisdom is probably right.
Over the long run, however, much of the court's logic with respect to judicial races could also apply to other kinds of elections. The court focused on the integrity of the judiciary, but the integrity of our other democratic institutions is equally important — and can also be compromised by out-of-control campaign spending bankrolled by a tiny portion of the electorate.
Lanell Williams-Yulee wanted to be a county judge in Hillsborough County, Florida, which is an elected position. She needed to raise money to run, so she sent a fundraising letter asking for contributions for the primary. There was just one problem: The letter violated a provision of Florida's Code of Judicial Conduct prohibiting judicial candidates from personally soliciting such campaign contributions (would-be judges can still form campaign committees to ask for contributions on their behalf).
Williams-Yulee claimed the prohibition violated her First Amendment rights. Given the Roberts Court's track record on campaign finance, she had reason to be optimistic that five justices would agree. In less than a decade, a narrow court majority has invalidated many other campaign finance laws designed to protect the integrity of our democratic institutions, ushering in an era of unprecedented election spending by super PACs and dark-money groups that can raise unlimited funds. As a consequence, our politics are increasingly dominated by a small coterie of incredibly wealthy mega-donors. Judicial elections have fallen victim to this same trend, and many observers thought that yet another domino was about to fall on the way to completely unregulated campaigns.
Integrity of the Judiciary
That didn't happen, thanks to Chief Justice John Roberts. He joined the court's four liberals to uphold Florida's rule, reasoning that it furthered the state's compelling interest in protecting "the integrity of the judiciary." Litigants who come before a court, he reasoned, are entitled to the "utmost fairness" and impartiality. They should not have to weigh a lawyer's political contributions before deciding whether to retain her. Because allowing judicial candidates to solicit contributions breaks the bond of trust between judges and the public, a state can appropriately choose to prohibit such conduct. Remarkably, this is the same John Roberts who, just one year ago in McCutcheon v. FEC, equated politicians' campaign contributors with constituents, and proclaimed that the use of large contributions to win preferential treatment from elected officials is a fundamental constitutional right.
Has the chief justice had a change of heart? Probably not. The Williams-Yulee decision rests on the premise that judges are unique. Judges, even when elected, "are not politicians," according to Roberts' opinion for the court. A judge "must be perfectly and completely independent, with nothing to influence or control him but God and his conscience." Politicians, on the other hand, are "appropriately responsive to the preferences of their supporters." In the real world, this is all too often the wealthy backers who bankroll their campaigns.
The court surely is right that judges should not be considered just another set of politicians. Something is uniquely troubling about lawyers and litigants using campaign donations to curry favor with those who might one day rule on their cases. For that reason, judicial candidates probably should be subject to more stringent restrictions than other people running for office.
Nevertheless, courts do not have a monopoly on integrity. Citizens have the right to be treated fairly in all their dealings with the government, not just when they come before a judge. And if judges can be unduly swayed by campaign spending on their behalf, plainly so can other officials. Just look at how much money major federal contractors spend on political donations to candidates. The reason they do so is obvious: to curry favor with those in a position to steer federal dollars in their direction.
To be sure, a certain school of thought sees nothing wrong with such money-driven "ingratiation and access" (as Roberts put it in McCutcheon), one that actually posits such practices as a core feature of our democracy.
But most Americans take a different view — and, until fairly recently, so did the court. As recently as 2003, a majority of justices held that using campaign finance laws to curb efforts to gain "undue influence" over elected leaders was entirely appropriate and constitutional. And although those justices recognized that balancing freedom of expression against the need to safeguard the integrity of our civic institutions is rarely easy, they were more inclined to let the American people and their elected representatives make the hard choices for themselves.
Williams-Yulee shows that even the current court has not entirely lost sight of such restraint. The decision doesn't mark a sea change, but it is certainly a reassuring step in the right direction — perhaps a bigger one than we realize.