People For the American Way Foundation

Judicial Elections and Government Integrity at the Supreme Court

The Supreme Court issued a 5-4 campaign finance ruling this morning. But rather than another Citizens United or McCutcheon, the Court this time upheld a state campaign finance restriction against a First Amendment challenge. In the case of Williams-Yulee v. The Florida Bar, the Roberts Court narrowly upheld Florida's ban on state judicial candidates directly soliciting campaign funds. With the difference of only one vote, even this reasonable limitation would have been struck down.

If only the Court would apply the reasoning of this case outside the narrow area of judicial elections. The Justices acknowledge that a state can reasonably conclude that an appearance of bias and impropriety is created when a judicial candidate directly asks someone to give her a campaign contribution. The Chief Justice wrote that "it is the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity."

But that isn't only because they are judges. Any elected official has an obligation to serve the public, whether that is by ruling consistent with the law (like judges do) or pursuing the interests of your constituents and community (as legislators and executives do). That is very different from using that public office to serve the interests of wealthy private interests. When a congressional or presidential candidate wins office due to the financial largess of a small number of extremely wealthy and powerful donors, it just may "diminish their integrity" in the eyes of the public.

It isn't just judges who risk the appearance of corruption when they engage with funders. As we have seen in cases like Citizens United and McCutcheon, Roberts and his conservative colleagues are unwilling to concede that Americans see corruption and the appearance of corruption in the outrageous sums of money being funneled into non-judicial elections.

As for judicial elections (the subject of this case) Justice Ginsburg's concurring opinion is worthy of significant attention. She wrote separately to expound on the "substantial latitude" the Court should give states to regulate judicial campaign finance, and she discussed how much money is now flowing into judicial elections, and the harm that causes to justice:

When the political campaign-finance apparatus is applied to judicial elections, the distinction of judges from politicians dims. Donors, who gain audience and influence through contributions to political campaigns, anticipate that investment in campaigns for judicial office will yield similar returns. Elected judges understand this dynamic. …

In recent years, moreover, issue-oriented organizations and political action committees have spent millions of dollars opposing the reelection of judges whose decisions do not tow a party line or are alleged to be out of step with public opinion. …

Similarly portraying judges as belonging to another political branch, huge amounts have been spent on advertisements opposing retention of judges because they rendered unpopular decisions in favor of criminal defendants. …

Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence. Numerous studies report that the money pressure groups spend on judicial elections "can affect judicial decision-making across a broad range of cases."

The threat to the judicial branch of government in states with high-dollar judicial elections is serious and real.

Today's opinion on judicial elections is an opportunity to focus on the threat to the political branches, as well.