Op-Ed: From Supreme Court, a mixed blessing on campaign finance limits

The Supreme Court offered a pleasant surprise this week to those of us worried about the role of money in elections. In a 5-4 opinion written by Chief Justice John G. Roberts Jr., the court on Wednesday upheld a rule limiting certain fundraising activities for judicial candidates. But don’t expect Williams-Yulee vs. State Bar to lead to a more widespread return to campaign-finance sanity; the ruling applies only to judicial elections and Roberts isn’t about to concede that free-flowing donations are tainting the political system.

First, the good news: Roberts finally found a campaign finance limitation, aside from disclosure, that he was willing to uphold — a true rarity.

At issue was a Florida State Bar rule that prevents judicial candidates from personally soliciting campaign contributions. Lanell Williams-Yulee, who broke the rule by sending out a mailing asking for money, argued that it violated her 1st Amendment right to speak.

She had a strong case. Back in 2002, the Supreme Court held that the 1st Amendment applied to candidate speech in judicial elections in much the same way that it applied in regular elections. It also held that a Minnesota law preventing judicial candidates from “announcing” their positions on certain issues was unconstitutional.

Roberts agreed that Florida’s personal solicitation rule raised serious 1st Amendment issues — so serious, in fact, that the law would have to be judged under the court’s toughest level of review: strict scrutiny.

Usually laws under this standard are struck down. But Roberts found that the law was justified, because it helped maintain the public’s confidence in the impartiality of the judiciary. He seemed to relax the strict scrutiny standard a bit in explaining how the law was narrowly, if not “perfectly,” tailored to that interest.

The decision means that, despite the 2002 ruling, states may now experiment with all kinds of restrictions that could also help preserve the appearance of impartiality — such as overall donation limits, for example. States won’t necessarily succeed with these attempts, but they might as well try.

So far, so good.

Roberts’ reasoning, however, was clearly confined to judicial elections. We don’t expect our legislators and other regular elected officials to be impartial. On the contrary, we often want the men and women we elect to adhere to specific ideologies and to represent distinct constituencies. This means the Roberts argument won’t work in nonjudicial campaign cases.

Significantly, Roberts did not accept another argument for judicial campaign-finance limits, mentioned by the liberal Justice Ruth Bader Ginsburg in her separate concurring opinion: “Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence.”

Roberts worries only about public perception in the unique context of judicial elections; Ginsburg’s record makes clear that she worries about perception and reality in all elections. Unlike Roberts, Ginsburg understands that big money has a distorting influence on which candidates win elections, and what they do once they’re in office.

When judicial or other candidates accept money from donors or benefit from outside spending, it skews their behavior — and that’s dangerous.

The chief justice’s failure to endorse Ginsburg’s argument is no shock given his role in the 2010 Citizens United vs. Federal Election Commission decision, which helped usher in the “super-PAC” era.

In his concurrence in Citizens United, Roberts rejected the argument that the federal government could limit outside spending in elections to prevent corporations from swaying political outcomes, saying that the 1st Amendment forbids this kind of interference.

Justices Antonin Scalia and Anthony M. Kennedy, Roberts’ allies on campaign-finance issues, seemed taken aback by the chief justice’s opinion in Williams-Yulee. Kennedy accused Roberts of endorsing censorship, and Scalia called Florida’s rule a “wildly disproportionate restriction upon speech.”

There was some pleasure in watching Roberts have to defend himself against his fellow conservatives. Usually he waxes poetic about unfettered campaign money as if it were a great and dignified example of the American commitment to free speech. In this instance, Roberts bristled at the suggestion that he was supporting “a latter-day version of the Alien and Sedition Acts.”

Reformers can justly celebrate what Williams-Yulee means for judicial elections. But let’s not pretend Roberts has seen the light. The next time a nonjudicial fundraising case reaches the Supreme Court, he is likely to be the one yelling about “censorship.” Despite this win on judicial elections, the campaign finance situation overall remains dire.

Richard L. Hasen is a professor of law and political science at UC Irvine and the author of the forthcoming book “Plutocrats United: Campaign Money, the Supreme Court, and the Distortion of American Elections.”

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