The Supreme Court under Chief Justice John Roberts is most famous for gutting campaign finance law. Roberts’ has rapped his gavel on two momentous decisions. Citizens United allowed unlimited donations to flow into Super PACs, and McCutcheon removed limits on the number of candidates donors can give to. Under Roberts, the Court has also been quite partisan. Before Wednesday, Roberts had only sided with the Court’s four liberals in one decision, the 2012 ruling upholding the legality of the Affordable Care Act.
But on Wednesday, Roberts, depending on whom you ask, either saw the light or pulled a Benedict Arnold. In a 5-4 ruling, Roberts sided with Ginsburg, Breyer, Sotomayor and Kagan for only the second time to (GASP!) uphold a Florida statute barring elected judges from directly soliciting campaign donations. Roberts wrote the majority opinion in Williams-Yulee v. Florida Bar.
Florida is one of 39 states where voters elect trial or appellate judges. A judicial candidate, Lanell Williams-Yulee, directly mailed and posted online a letter seeking donations for her campaign. She was disciplined by the Florida Bar for violating a Florida statute banning such direct solicitation. She charged that her First Amendment rights were violated, but the Florida Supreme Court upheld the disciplinary sanctions against her, and thus, the statute. The case then landed in the highest Court in the land, where Roberts fist-bumped the Florida Supreme Court and smacked down Williams-Yulee.
This comes as a shock, because Roberts has previously ruled that campaign donations are free speech, protected by the First Amendment, and thus cannot be abridged. Williams-Yulee essentially relied on Roberts’ theory of campaign money as a form of speech in her suit. What few saw coming is how much of a distinction Roberts would make between legislative and judicial candidates. Roberts’ now updated theory of the great difference between influencing legislators and judges amounts to a difference between Caesar, who may be influenced, and ‘Caesar’s wife,’ who must be above suspicion.
Roberts ruled that
“Florida’s interest in preserving public confidence in the integrity of its judiciary is compelling.”
A judge’s job, Roberts reasoned, requires “strict neutrality and independence,” and efforts to seek campaign funding would erode the public’s confidence in a judge’s impartiality.
This may be the most obvious thing Roberts has written on the subject of campaign funding, which he has revolutionized. He anticipated that critics would shout that he should have made the same obvious observations about campaign funding in the other two branches. He draws a bright line between the legislator and the judge,
“Unlike a politician, who is expected to be appropriately responsive to the preferences of supporters, a judge in deciding cases may not follow the preferences of his supporters or provide any special consideration to his campaign donors. … precedents applying the First Amendment to political elections have little bearing on the issues here.”
Roberts is both right and very wrong, here. It is true that a legislator or executive has a responsibility to be responsive to the desires of constituents, while a judge should only weigh a case on its legal merits. That is an important distinction, and Roberts is right to make it. However, Roberts’ Citizens United opinion that unlimited money is itself a legitimate form of lobbying a politician relied not on the Constitutional merits, but on enshrining and expanding an already broken status quo.
When Roberts heard Citizens United, Washington was already drowning in campaign funds and super-funded lobbying. Purchased influenced had crept into every nook and cranny in Swiss cheese regulations. Roberts saw this, and rather than affirm the regulations, decided that they should be virtually wiped away. In McCutcheon he argued that campaign funding cannot be a form of corruption, or even give the appearance of corruption, because it’s not a quid pro quo. Roberts set the bar of what constitutes ‘corruption’ so high that, to meet his definition, one would basically need a video of a donor saying directly to a politician, ‘I will give you this million dollars if you vote the way I want on this bill that will benefit me.’ Anything less than that, Roberts ruled, is not corruption. His preposterous twin theories narrowing corruption to a singularity, and expanding speech to include a galaxy of money, have created a virtual oligarchic coup d’etat, as presidential candidates who, only a few years ago, ate corndogs with local folks at county fairs to win straw polls now jet off to billionaires’ mansions to bow and scrape.
Yet, in the case of judges seeking office, Roberts is now tetchy about the possibility that even the stated desire for money could destroy a judge’s appearance of neutrality. He is right about that, but it highlights how egregiously wrong he is on campaign funding otherwise. Just as judges must adhere to the law or appear corrupt, legislators must adhere to the will of the voters, not to shadowy donors who fund a tsunami of ads.
To get a sense of how ridiculous Roberts has been up to now, one need only look at Justice Antonin Scalia’s dissenting opinion. The dissent is an enraged vitriolic screed against Roberts’ opinion. Scalia accuses the Court of unbridled censorship, as if regulating campaign solicitation were book burning. He writes,
“Faithful application of our precedents would have made short work of this wildly disproportionate restriction upon speech. Intent on upholding the Canon, however, the Court flattens one settled First Amendment principle after another.”
He wanted the Court to rely on its precedents in Citizens United and McCutcheon to continue tearing apart all campaign regulation. If the Court had done that, it wouldn’t be long before corporations would be able to build on their ability to purchase votes on laws with the power to purchase rulings on them, at least in 39 states.
Scalia went on to argue that Watergate era statutes regulating campaign finance undermined a long, proud tradition of anything goes, and were too recent to be considered settled. This ignores the fact that wealth inequality is far greater today than in the 1970s, so the power of fewer individuals to purchase more influence is also greater today than it was when Nixon resigned in disgrace. Scalia also ignores the fact that 40 years is kind of a long time, even in legal precedent. Watergate awakened the nation to a serious problem eating at the political process, and drove leaders to address it. Roberts and pals have been gnawing away at those regulations, and Scalia is outraged that Roberts wouldn’t go all the way. The logic of this relies on the Orwellian ideas in their precedents that money is speech, but corruption is not corruption unless it announces itself. This reasoning is about as incisive as a child’s understanding of the motives of the Tooth Fairy.
But at least we can breathe a sigh of relief that Roberts believes judges should not appear to be corrupt. Or maybe someone forgot to bribe him?