Campaign finance reformers should remain depressed

It is time to rain on the parade of anyone who is vigorously celebrating the latest U.S. Supreme Court campaign-finance decision. In Williams-Yulee v. Florida Bar, Chief Justice John Roberts, writing for himself and the four liberal members of the court, blessed the ability of states to prohibit judicial candidates from directly soliciting campaign contributions.

Campaign-finance reformers celebrated the outcome and Roberts’ decision to side with the liberal wing of the court. Some let themselves wonder if this decision might represent the end of the high court’s march to deregulate our nation’s campaign-finance laws. But those revelers are wrong. The chief justice is nobody’s liberal, or even moderate. And the decision does not represent a sea change in the high court’s otherwise dismal campaign-finance jurisprudence.

The issue in the case was whether states that hold judicial elections could create rules that prohibit judicial candidates from directly asking potential donors for campaign money. About half of the 39 states that hold judicial elections have such rules because they understand that there is something inherently unbecoming about someone who wants to be a judge asking someone else who may have a case before that would-be judge for money. And, of course, it is those who are most likely to argue a case before a would-be judge that are most likely to be the campaign donors in judicial elections. In a world in which campaign donations are generally just the cost of doing business, judicial elections are not qualitatively different from any other kind of elections.

It is important to remember that plenty of unbecoming behavior is still allowed. Judicial candidates can still run ads asking for money. They can still know the identity of their campaign donors, and they can still personally thank those donors. The judicial candidates just cannot actually hold out their hands and accept the donations. They must deploy others to do that.

Roberts has a lot of feel-good language about upholding the integrity of the judicial process. That’s nice. But there are at least two problems with that conclusion. First, judges are different from politicians running for legislative and executive offices in many ways, but Roberts’ conclusions only point out the problems inherent in the campaign-finance system that applies to those candidates. Second, much of this reasoning just points out the dangers of judicial elections.

As to the first issue, Roberts spills some ink explaining why we must be concerned about corrupting judicial candidates but need not worry our little heads about political candidates. The majority writes that judicial candidates should not worry about having to be responsive to the preferences of their supporters, even though this narrow restriction would not eviscerate such worries. But the majority says that self-government depends on politicians being responsive to their supporters. I respectfully suggest that a functioning self-government depends on politicians who will respond to the views and needs of all of their potential constituents, not just their supporters.

As to the second issue, how many more examples do we need to show that asking our judges to run for popularity contests is simply detrimental to the idea of an independent judiciary? First, there is a dearth of meaningful information about judicial candidates. Many voters end up deciding whom to cast a ballot for based on little more than a three-word job description in the ballot. Or, worse yet, voters rely on gender and last name to make their decisions. Second, judges, as Roberts seems to realize, should be separate from the rough-and-tumble world of hustling for campaign donations. But they should also be separate from the world of vying for votes.

Judges are charged with applying the facts to the law. Sometimes the law dictates that unpopular decisions be made. Sometimes those decisions protect minorities or those with ostracized views. Judges should not worry about their ability to keep their jobs when doing their jobs.

The court’s ruling in Williams-Yulee is narrow. All it says is that states that want to ban judicial candidates from directly begging for campaign cash can do so. There is nothing in the opinion to indicate that the chief justice would uphold a restriction that could actually do what the majority purports to worry about – uphold the integrity of the judicial process. The opinion seems to indicate that indirect solicitations must be allowed. Further, the reasoning of the opinion would make it much harder to limit the large independent expenditures that now play such a large and harmful role in many judicial elections.

There is little to celebrate here, unless you enjoy the status quo of judicial elections and campaign-finance laws.

Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, and vice president of the Los Angeles Ethics Commission. She blogs at Follow her on Twitter @LevinsonJessica.