Symposium: A rare case indeed

Yesterday’s decision in Williams-Yulee v. Florida Bar was the self-described “rare” case in which a campaign finance speech restriction survived strict scrutiny. It was also the exceedingly rare case in which the Chief Justice joined the more liberal wing of the Court to uphold a campaign finance restriction. Coming down just one day after the entire nation focused on the same-sex marriage arguments at the Court, and while the Court presumably struggles to craft an opinion in the latest challenge to Obamacare, one cannot help but feel that “public confidence in the integrity of the judiciary”— the justification upon which the Court upheld Florida’s law — weighs heavily on the mind of the Chief Justice at the moment.

From the opening paragraphs, the Chief Justice made clear that the underlying basis for the Court’s ruling was that “[j]udges are not politicians,” and that the Court views the judicial sphere as entirely divorced from the political sphere. Thus, while the Court has all but rejected the justification of public confidence in the integrity of the political system as a compelling interest in the context of political campaign finance decisions, the Court here accepted the justification of public confidence in the integrity of the judicial system to uphold Florida’s ban on personal solicitation of judicial campaign contributions. Judges are different, the Chief Justice tells us, and seems anxious to be sure we believe that the job of the judiciary is to “exercise[e] strict neutrality and independence,” or as he famously said during his confirmation hearings, to simply “call balls and strikes.”

But are judicial elections really all that different? Why should we care more about public confidence in the integrity of the judicial branch than we do about public confidence in the integrity of the legislative branch? The Court had an answer to that: “States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians,” the Court tells us. “Politicians are expected to be appropriately responsive to the preferences of their supporters. . . . The same is not true of judges.”

Clearly, the Chief Justice and the majority of the Court have embraced the view that politicians are “expected” to be particularly responsive to their campaign supporters. Indeed, in striking down the aggregate contribution limits in McCutcheon v. FEC (2014), the Chief Justice’s opinion for the Court spoke in glowing terms of the “gratitude” that politicians feel to campaign donors and the responsiveness that monetary support engenders from politicians. But it is not at all clear that the rest of the country shares this view of how democracy is supposed to work. Poll after poll shows that public confidence in the integrity of our democratic system is at an all-time low with the majority of Americans believing that money is the only way to gain a voice in the democratic process. “Leave the perception of impropriety unanswered,” Justice Souter once said, “and the cynical assumption that large contributors call the tune could jeopardize the willingness of voters to take part in democratic governance. Democracy works only if the people have faith in those who govern.”

With its recent campaign finance decisions, culminating most recently in McCutcheon, the Court appears to have completely abandoned the notion that campaign finance restrictions in the legislative realm can be justified on the basis that “[d]emocracy works only if the people have faith in those who govern.” Instead, the McCutcheon Court narrowed the potential justifications for campaign finance restrictions to the single interest in preventing quid pro quo corruption or its appearance – essentially outright bribery.

Yet it is clear that a much broader conception of potential impropriety and the need for the people to have faith in the judicial system were motivating the decision today. Justice Ginsburg’s concurrence masterfully put together the evidence and empirical data showing how the electorate loses faith in the judicial system when campaign contributions come into play. As the Justice noted, “[m]ultiple surveys over the past 13 years indicate that voters overwhelmingly believe direct contributions to judges’ campaigns have at least ‘some influence’ on judicial decisionmaking.” Indeed, as was set forth in our amicus brief on behalf of law, economics, and political science professors, a majority of voters believe that candidates for judicial office cannot be impartial if they have accepted any campaign contributions at all.

Given that the Court has so clearly staked out a position that “[j]udges are not politicians,” and that judicial elections are different than political elections, it seems unlikely that the public confidence rationale on which the Court relied in this case will be reinvigorated in the non-judicial campaign finance context to justify contribution limits or other restrictions. But those who believe that public confidence in the integrity of the democratic process is just as important as public confidence in the integrity of the judicial process are no doubt wondering if there is any chance that they might pick up on the seed planted in Justice Ginsburg’s concurrence and convince the Court that when it comes to the public confidence rationale, “the distinction of judges from politicians dims.”

Jessica Ring Amunson is a partner in Jenner & Block’s Appellate and Supreme Court Practice and its Election Law and Redistricting Practice.  She is the author of the amicus brief of the professors of law, economics, and political science cited by Justice Ginsburg in her concurrence.  She also co-authored an amicus brief in McCutcheon v. FEC on behalf of Democratic Members of the House of Representatives, which was cited in Justice Breyer’s dissent.