A Campaign-Finance Victory That Is Less Than It Seems

Judges can no longer directly solicit donations, but the Supreme Court signaled that further limitations on their fundraising are now unlikely.

Jonathan Ernst / Reuters

It is rare for Chief Justice John Roberts to join forces with the Court’s four more liberal members in a 5-4 decision. It is equally rare for the Chief to approve a restriction, however slight, on money in politics. Both things occurred Wednesday, when the Court narrowly upheld a state legal-ethics rule that bars candidates for judicial office from directly asking for campaign contributions. In Williams-Yulee v. Florida State Bar, Roberts not only joined with the liberal wing, but also wrote the opinion. “Judges are not politicians, even when they come to the bench by way of the ballot,” Roberts wrote. “A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.”

But to quote the late Tallulah Bankhead, “there’s less in this than meets the eye.” Roberts’ opinion never questioned private donations as a source of funds in judicial elections, only the method of solicitation. His opinion upheld a very narrow reform measure, but at the same time made further reforms marginally harder to enact.
The case concerned an ethics sanction levied against Lanell Williams-Yulee, a criminal-defense lawyer in Tampa. In 2009, she decided to run for a spot on the state-trial court; to that end, she sent out a mass mailing soliciting contributions to her campaign. She lost, and then the Florida Supreme Court sanctioned her for violating Canon 7C(1) of the Florida Code of Judicial Conduct, which forbids judicial candidates from “personally soliciting campaign funds.” Candidates can establish committees that ask for funds; they can be told who has given and who has not; they may even write "thank you" notes to those who do. But they just can’t say, “How’d you like to give my campaign some money?”
While upholding the Florida rule, Roberts injected a section into his opinion saying that any future restrictions on judicial-campaign finance will be judged by “strict scrutiny,” the Court’s most demanding standard of review. That moves the unlimited-finance football a few crucial yards further into the judicial-campaign red zone.
“Strict scrutiny” requires that a restriction on speech be “narrowly tailored” to further a “compelling government interest.” In this case, Roberts said, the interest is “public perception of judicial integrity.” It stands to reason that “the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.” The very narrowness of the law, Roberts wrote, is evidence that it passes “strict scrutiny”; the 30 states that have adopted the solicitation rule are restricting First Amendment speech, but very little of it. “Candidates can write letters, give speeches, and put up billboards,” he wrote. “They can contact potential supporters in person, on the phone, or online. They can promote their campaigns on radio, television, or other media. They cannot say, ‘Please give me money.’”
The slight restriction, Roberts wrote, is valid because “[t]he identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest.”
In her partial concurrence, Justice Ginsburg points out that the real danger to judicial integrity is not so much solicitation as the untamed flood of money into these elections: “In recent years ... issue-oriented organizations and political action committees have spent millions of dollars opposing the reelection of judges whose decisions do not toe a party line or are alleged to be out of step with public opinion. ... [H]uge amounts have been spent on advertisements opposing retention of judges because they rendered unpopular decisions in favor of criminal defendants.” A holding that “strict scrutiny” applies to judicial-campaign finance regulation would make this flood of money harder for states even to regulate, much less stem.
So all in all, the decision in Williams-Yulee is a narrow and self-limited win for campaign-finance reform. You would not know that, however, from reading the dissents by Justices Antonin Scalia and Anthony Kennedy. More and more these days, Scalia seems to be channeling his inner Glenn Beck: Roberts must hate the American people, his dissent reasoned, or he could not possibly allow limits on such important political speech in pursuit of “an ill-defined interest in ‘public confidence in judicial integrity.’” That, Scalia argued, is because

[w]hen a society decides that its judges should be elected, it necessarily decides that selection by the people is more important than the oracular sanctity of judges, their immunity from the (shudder!) indignity of begging for funds, and their exemption from those shadows of impropriety that fall over the proletarian public officials who must run for office. ... The prescription that judges be elected probably springs from the people’s realization that their judges can become their rulers—and (it must be said) from just a deep-down feeling that members of the Third Branch will profit from a hearty helping of humble pie, and from a severe reduction of their great remove from the (ugh!) People. (It should not be thought that I myself harbor such irreverent and revolutionary feelings; but I think it likely—and year by year more likely—that those who favor the election of judges do so.)

Then there’s Kennedy. Roberts wrote that someone reading his dissent “could be forgiven for concluding that the Court has just upheld a latter-day version of the Alien and Sedition Acts” rather than a narrow restriction on direct solicitation. “Today the Court says the State can censor [a judicial candidate’s] speech, imposing a gag on his or her request for funds, no matter how close [the candidate] is to the potential benefactor or donor. The result is that [the candidate’s] personal freedom, the right of speech, is cut off by the State.” Beyond that, “[b]y cutting off one candidate’s personal freedom to speak, the broader campaign debate that might have followed—a debate that might have been informed by new ideas and insights from both candidates—now is silenced. ... The Court locks the First Amendment out.”
The vehemence with which the dissenters turned on one of their own is remarkable—especially considering that the restriction Roberts approved is so minor. It would be a mistake to conclude that Roberts has somehow had a change of heart on campaign finance. He and the dissenters are singing in the same choir, even if, on this one day, they were singing slightly out of tune.