Power

Supreme Court Limits Judicial Campaigning—Sort Of

A decision at the end of April to uphold a Florida ban on judges directly soliciting campaign funds should be win for progressives. But like almost everything from the Roberts Court, the ruling still favors conservatives.

A decision at the end of April to uphold a Florida ban on judges directly soliciting campaign funds should be a win for progressives. But like almost everything from the Roberts Court, the ruling still favors conservatives. Shutterstock

Conservative efforts to stack state courts with judges friendly to causes like rolling back abortion rights received a perceived setback last month from the unlikeliest of places—the Roberts Court. The decision came in Williams-Yulee v. Florida Barwhich focused on whether any judicial candidates in states that elect judges can be subject to more stringent campaign finance restrictions than those running for legislature or governor. The Court ruled 5-4 they are, leading some to hope the case represents a limit to the Roberts Court’s willingness to bless big spending in political elections.

But before we progressives get too excited, let’s remember that the Roberts Court rarely gives our side any gifts, and its decision to uphold state bans on judicial campaign solicitations is no different.

In 2009 Lanell Williams-Yulee was running for a county court seat in Florida. To raise money for her campaign, she sent out a mass mailing with a personal appeal for contributions and posted the same letter on her campaign website. That upset the Florida Bar, the group that regulates lawyers and judges in the state. The bar disciplined Williams-Yulee for violating a Code of Judicial Conduct Rule, Canon 7C(1), which provides that candidates “shall not personally solicit campaign funds … but may establish committees of responsible persons” to raise money for election campaigns.

Williams-Yulee challenged the disciplinary ruling and argued that the First Amendment protects a judicial candidate’s right to personally solicit campaign funds in an election. The Florida Supreme Court disagreed and upheld the disciplinary sanctions, ruling that the restriction on judges personally soliciting campaign funds is narrowly tailored to serve the State’s compelling interest in protecting public confidence in and the integrity of the judicial branch. Last month, the Supreme Court upheld that Florida Supreme Court ruling.

Under Chief Justice John Roberts’ leadership, the Court has unleashed a flood of money into the electoral process, all in the name of free speech. But this time, Roberts joined the liberals on the Court to uphold the Florida regulation, which arguably restricts candidates’ ability to raise funds. Writing for the 5-4 majority, Roberts explained that judicial candidates are different than other political candidates, which means states can regulate their campaign activity differently. “Judges are not politicians, even when they come to the bench by way of the ballot,” Roberts wrote. “And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.”

Currently, 39 states elect their judges, meaning they run for office alongside state legislators and governors. Meanwhile, for federal judges the appointment and confirmation process is inherently political, as proven in the fight last year over D.C. Circuit Court of Appeals nominations. The idea that judges are somehow not subject to partisanship is increasingly a fantasy devoid of any grounding in reality. At the same time, judges are different from lawmakers in that they are supposed to render decisions “objectively” or without regard to politics. And the evidence is very clear that campaign cash corrupts our courts with judges deciding cases favorably for campaign boosters and their partisan supporters. After all, if buying judges didn’t work, conservatives wouldn’t be trying so hard to stack the bench in their favor.

Still, the majority’s opinion does practically nothing to end judicial campaigning, much of which happens in venues outside direct soliciting of funds or votes. All it does is reinforce an idea of judicial exceptionalism that frankly isn’t warranted. Justice Antonin Scalia inadvertently proved this point in his dissent. Scalia noted a number of “real-world questions” remain unanswered by the majority’s reasoning in upholding the Florida ban. While his point may have been to criticize the Chief Justice’s conclusion that direct-solicitation bans like Florida’s protect judiciary integrity, the laundry list of judicial campaign activities Scalia offers up as proof the majority got it wrong also reinforces how inherently political the judiciary has always been.

“Does the First Amendment permit restricting a candidate’s appearing at an event where somebody else asks for campaign funds on his behalf?” asked the frequent invitee to Koch Brothers events. “Does it permit prohibiting the candidate’s family from making personal solicitations? Does it allow prohibiting the candidate from participating in the creation of a Web site that solicit funds, even if the candidate’s name does not appear next to the request?” pressed Scalia.

In other words, judges will still do plenty of campaigning. The distinction the majority draws around direct asks for money is of little difference unless it’s going to address all these activities as well.

Of the 39 states that elect their judges, 30 have rules similar to Florida’s ban. Roberts did not side with the conservatives to rule states can’t limit judicial campaigning, which means those state-level protections already in place remain. Still, the victory is a hollow one: Judges increasingly have to raise inordinate sums to win elections regardless. Instead of facing voters directly, they will have a campaign treasurer ask for them. It’s the same ask, only hidden behind a curtain. How exactly is that going to further the impartiality of the courts?

To the extent that the Court’s majority was hand-wringing over integrity of the judiciary and elections, Roberts decision does little to protect or advance that integrity. That’s probably in part because polling suggests it’s more often bad decisions than bad campaigning that erodes the public’s confidence in the courts. As far as I know, there’s no campaign finance fix to bad judicial opinions.