Finance Restrictions

Supreme Court Actually Upholds Campaign Finance Restrictions On Judicial Fundraising

By Paul Blumenthal

In a 5-4 decision on Wednesday, the Supreme Court upheld the right of states to ban elected judges from soliciting campaign contributions for their own campaigns. The majority decision was penned by Chief Justice John Roberts and joined by the court’s four liberal justices.

The decision comes after a long string of court rulings that overturned campaign finance regulations, among them the well-known 2010 Citizens United and the 2014 McCutcheon cases. Wednesday's ruling, by contrast, upholds a campaign finance regulation, and does so by making a strong distinction between the role of the judiciary and the role of elected legislative and executive officials.

Explaining this distinction, Roberts, writing for the majority, said: “A State’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections. As we explained in [Republican Party of Minnesota v. White], States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians.”

In the case before the court, Florida judicial candidate Lanell Williams-Yulee had signed her name to a fundraising solicitation letter while running for office in 2009. She did so despite Florida’s ban on fundraising solicitation by judicial candidates. Candidates like Williams-Yulee are allowed to raise money through campaign committees, but they may not solicit the funds themselves. Williams-Yulee challenged the law as a restriction of her First Amendment right to free speech.

The court, however, did not agree. Instead, it upheld the Florida ban on direct judicial candidate solicitation because of what Roberts described as the unique way the judiciary maintains its authority. While politicians are expected to balance a variety of interests and receive support from various quarters, judges must be seen by the public as being fair and above influence.

“In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors,” Roberts wrote.

He concluded, “This is therefore one of the rare cases in which a speech restriction withstands strict scrutiny.”

Roberts had previously been a strong opponent of campaign finance restrictions, having sided with the majority in Citizens United, McCutcheon and a handful of other cases related to the issue. His decision to back a new standard -- one maintaining that judges, and therefore the campaign finance laws covering them, are different from politicians -- marks a major shift for the court.

As Rick Hasen, an election law expert at the University of California, Irvine, wrote on his Election Law Blog Wednesday: “This is a huge change in Supreme Court doctrine, where in cases like Minnesota Republican Party v. White the Court did not accept such differences as a basis for restricting the speech of judicial candidates. This is an acceptance of Justice [Ruth Bader] Ginsburg’s White dissent, in which she rejected the 'unilocular' an election is an election.”

For her part, Ginsburg went along with Roberts’ opinion, aside from the chief justice’s decision to apply strict scrutiny -- the most stringent form of judicial review -- to the Florida Bar’s fundraising solicitation ban. But it was the second section of Ginsburg’s concurrence that hinted at the future importance of the Williams-Yulee decision.

In her opinion, Ginsburg took the logic advanced by Roberts -- that certain fundamental differences separate judges from politicians -- and extended it to other campaign finance laws. She argued that the entirety of existing Supreme Court precedent on campaign finance law for politicians should not apply to campaign finance law for judges.

“The Court’s recent campaign-finance decisions, trained on political actors, should not hold sway for judicial elections,” she wrote.

This brings up the question of whether unlimited corporate independent expenditures, as allowed under Citizens United, could be banned by individual states for judicial elections.

To make her point, Ginsburg introduced a record of reports and studies showing that judges have, at various times, changed their opinions based on pressure from campaign donors and as a result of independent expenditures from super PACs and similar groups.

The four-vote dissent from the majority opinion came from conservative Justices Anthony Kennedy, Antonin Scalia, Samuel Alito and Clarence Thomas.

In a dissent joined by Thomas, Scalia wrote:

The first axiom of the First Amendment is this: As a general rule, the state has no power to ban speech on the basis of its content. One need not equate judges with politicians to see that this principle does not grow weaker merely because the censored speech is a judicial candidate’s request for a campaign contribution.

A separate dissent written by Kennedy seemed to echo his own Citizens United opinion by asserting broad First Amendment speech rights while stating that only disclosure rules are necessary to fulfill the public’s need to judge whether a candidate is corrupt or not.