Tuesday, January 20, 2015

Judging the Role of Money in Judicial Elections

By Professor Jessica A. Levinson

This op-ed originally appeared in the Los Angeles Daily Journal.

A judicial candidate, a potential donor and a lawyer walk into a bar. If that bar is located in Florida or one of dozens of states that prohibit judicial candidates from directly soliciting campaign contributions, then that candidate cannot ask the potential donor for money. However, the candidate can form a campaign committee, choose who runs it, look at the donor list, and call those donors to thank them.

Tuesday, the U.S. Supreme Court is hearing arguments in Williams-Yulee v. Florida Bar to consider whether Florida’s prohibition on judicial candidates from making direct campaign solicitations is constitutional. This case is not about whether or how much money judicial candidates can raise, but rather concerns whether they can directly ask for that money.

Advocates of these types of prohibitions contend that they promote the integrity of judges and confidence in the courts because it is problematic and frankly downright unseemly for judicial candidates to directly ask donors for campaign cash.

Let’s be honest, who do we think will give those campaign contributions? Short answer: generally people who may appear before that candidate. Hence a prohibition on the direct solicitation of contributions arguably protects the impartiality of the judiciary and guards against donors being able to exert an undue influence over judges. Advocates therefore claim that the prohibition reduces corruption or the appearance of corruption that can occur when a judicial candidate asks a potential donor for money.

Opponents of the prohibition claim such prohibitions infringe on the First Amendment without properly serving to prevent undue influence or corruption. It is true that the prohibition still allows potentially problematic behavior because judicial candidates still know who gives to their campaigns and can thank those donors. This is an argument that the restriction is not properly tailored to serve its goals. Opponents do not contend the restriction should be broader and prohibit more behavior, but that other options, such as contribution limits or recusal rules, could serve the same governmental interests without the burden on First Amendment rights.

The prohibition applies to everything from walking up to a potential donor and asking for money to sending out a mass mailing asking thousands of potential donors for money. Hence the restriction prevents what is likely the most unseemly exchange that can occur between a judicial candidate and a donor, a direct request for money. However, plenty of unseemliness is still permissible.

The truth is that we should not be having this conversation at all. We simply should not elect judges. Judges should be focused only on applying facts to the law, not whether a certain decision will be unpopular with the electorate come the next election. In addition, most voters lack meaningful information about judicial candidates, and campaign spending does little to alleviate that fact.

But judicial elections are held in 39 states and well over half of those states prohibit judicial candidates from directly soliciting campaign contributions. So here we are. 

Courts are split whether states can prohibit direct solicitation by judicial candidates. Enter the Supreme Court to resolve this division.

Williams-Yulee is not technically a campaign finance case because it does not address whether judicial candidates can raise funds or how large those funds can be. However, the Supreme Court’s campaign finance jurisprudence, which is a muddled morass, has deeply affected judicial elections and looms largely in the background of Williams-Yulee.

Since Justice Samuel Alito replaced Justice Sandra Day O’Connor in 2006, the court has overturned major pieces of campaign finance legislation. Most notably in 2010 in Citizens United v. FEC, the court struck down limits of the ability of corporations to spend money to support or oppose candidates. Then in 2014, in McCutcheon v. FEC, the court struck down limits on the total amount of contributions that donors can give to candidates, political committees and political parties. Now, in addition to disclosure provisions, some of the only limits that remain are those on direct contributions from donors to candidates.

Thanks to those recent Supreme Court rulings, spending on judicial elections is skyrocketing. It is against that backdrop the court will decide Williams-Yulee. But the court has also signaled that it may view judicial campaigns as distinct from other political campaigns. In 2009, in Caperton v. Massey Coal Co., five members of the court held a judge who received $3 million from a donor who later became a party in a pending litigation before that judge should have recused himself. While that case was decided under the due process clause not the First Amendment, it may show that at least five members of the court (the liberal justices and Justice Anthony Kennedy) see that a judge’s decisions raise different concerns from the decisions made by a legislator or chief executive.

Perhaps more influential than Caperton is a 2002 case called Republican Party of Minnesota v. White. There a bare majority of the court struck down a law that prohibited judicial candidates from proclaiming their views on disputed legal and political issues. Justice Antonin Scalia, writing for the majority, found that the law violated the First Amendment. Unlike Caperton in which the court seemed to acknowledge the inherent differences between judicial candidates and political candidates, the White court arguably found that judges should be treated like other politicians running for election.

There is no argument that the government could prohibit candidates for other elective offices from directly soliciting campaign contributions. It could not. So the question is whether the court will once treat judicial candidates as different from other political candidates.

If this summer a judicial candidate walks into a bar and asks you for money you know who you can thank.

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