by Ian Millhiser
Posted on
On Wednesday [4/29/2015], a 5-4 Supreme Court held in Williams-Yulee v. Florida Bar that states may “prohibit judges and judicial candidates from personally soliciting funds for their campaigns.” It was a small but symbolically important victory for supporters of campaign finance laws, as it showed that there was actually some limit on the Roberts Court’s willingness to strike down laws limiting the influence of money in politics.
Chief Justice John Roberts’s opinion for the Court in Williams-Yulee is certainly better for campaign finance regulation than a decision striking down this limit on judicial candidates — had the case gone the other way, judges could have been given the right to solicit money from the very lawyers who practice before them. Yet Roberts also describes judges as if they are special snowflakes who must behave in a neutral and unbiased way that would simply be inappropriate for legislators, governors and presidents:
States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such “responsiveness is key to the very concept of self-governance through elected officials.” The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must “observe the utmost fairness,” striving to be “perfectly and completely independent, with nothing to influence or controul [sic] him but God and his conscience.” As in White, therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here.
Most Americans would undoubtedly agree that judges should not “follow the preferences” of their political supporters, as they would agree that judges should not “provide any special consideration to his campaign donors.” But the implication of the passage quoted above is that members of Congress, state lawmakers, governors and presidents should provide such consideration to their supporters and to their donors. The President of the United States is the president of the entire United States. A member of Congress represents their entire constituency. Yet Roberts appears to believe that they should “follow the preferences” of their supporters and give “special consideration” to the disproportionately wealthy individuals who fund their election.
This view of lawmakers obedient to a narrow segment of the nation is not new. To the contrary, it drove much of the Court’s widely maligned campaign finance decision in Citizens United v. FEC. Justice Anthony Kennedy’s majority opinion in Citizens United does not simply argue that “[f]avoritism and influence” are unavoidable in a representative democracy, it appears to suggest that they are a positive good. “It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors,” Kennedy wrote in Citizens United. “Democracy,” he added “is premised on responsiveness.”