Symposium: Much ado about nothing?

The Supreme Court’s decision in Williams-Yulee v. Florida Bar to uphold the state’s solicitation law comes as a surprise. Based on the Court’s recent rulings in several campaign finance cases, many scholars anticipated that the Court would find Florida’s solicitation law to be unconstitutional. The Court’s opinion in Republican Party of Minnesota v. White (2002), which declared that announce clauses violate a judicial candidate’s First Amendment rights, was more reason to anticipate the Court ruling in favor of Williams-Yulee.

Although the ruling was surprising, the question is whether it matters. Certainly many scholars, practitioners, and judicial reformers are already hailing yesterday’s decision because they believe it protects the integrity of the courts and promotes judicial legitimacy in the eyes of the public. Indeed, some of the contributors to this symposium take such a position. However, I question whether the decision is monumental or important. In fact, the decision seems to me to be much ado about nothing. I do not believe that solicitation clauses protect the legitimacy of the court.

The five-Justice majority relies heavily in its opinion on the argument that judicial elections are different from elections for other offices — interesting, given its ruling in White — and, as such, Florida has a compelling interest to preserve “public confidence in the integrity of its judiciary.” This line of argument is consistent with claims put forth by those concerned about the role of money in judicial elections; they have long held that provisions like solicitation clauses are needed to protect court legitimacy. There is some reason to be concerned that campaign contributions may have a detrimental effect on the public’s attitudes toward the courts. In his path-breaking book, Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy (2012), Jim Gibson finds evidence that campaign contributions can have a negative influence on the public’s perception of the impartiality of the judge and the legitimacy of the judiciary.

The question is whether solicitation clauses do anything to help improve the public’s attitudes toward the judiciary. I know of no evidence that they do. Although many scholars cite Gibson’s finding that campaign contributions lessen the public’s positive perception of the courts, they often ignore two significant arguments made by Gibson. First, the public’s perception of the judiciary as it relates to campaign contributions is no different from how it perceives other offices, specifically the legislature. Second, and more important, Gibson finds that, as a whole, judicial elections actually enhance judicial legitimacy. Although there are some negative effects of holding elections, to be sure, according to Gibson, the pros outweigh the cons. Gibson believes that judicial legitimacy is enhanced because judicial elections remind people that judges are accountable to them. Contrary to what many judicial reform organizations or law professors believe, the public prefers that judges fall more on the side of accountability than independence.

Let us forget about Gibson’s finding regarding the overall benefits of elections on judicial legitimacy for a minute, as the majority made no claims about the wisdom of electing judges. Let us also assume Gibson’s finding is correct that campaign contributions undermine the public’s perception that judges are fair and impartial, something that the majority clearly believes. (That said, as Justice Antonin Scalia notes in his dissent, the majority offers little concrete support for this view.) It is still not clear that solicitation clauses lessen the perception of bias and protect the legitimacy of the courts.

The problem with campaign contributions in the eyes of the public — not just for the judge, but for all offices — is that they create a conflict of interest. Judges or legislators take campaign contributions and then find themselves presiding over a case or voting on a bill that either advances or hinders the interests of the contributors. In the case of legislators, perhaps this conflict of interest is not as great of a concern because it is the job of the legislator to reflect the wishes of her constituents. Of course whether the contributor actually reflects the interests of the legislator’s constituents is another matter. However, as Chief Justice John Roberts notes in his opinion, judges have no constituents. Their job is to uphold the Constitution and interpret the law, regardless of what the public believes. Additionally, a member of the legislature cannot wield much influence without the help of a couple hundred of her colleagues. This is not the case with judges who, at the appellate levels, are one of a handful of people responsible for a ruling. At lower levels, the judge may be the only person responsible for the ruling.

It is understandable, then, why concerns about conflicts of interest are heightened in judicial elections. Yet it is not at all clear that rules preventing judicial candidates from directly soliciting campaign contributions lessen the conflict of interest in the eyes of the public. The public is not likely to see — or, if they do see, to care — about the difference. The media account of the case will simply point out that the party was a contributor to the judge’s campaign. It will not likely make clear that the judge was prohibited from asking directly for the contribution. Even if the distinction were evident, it is unlikely that the public’s view that the judiciary is for sale would change.

When organizations spend money on behalf of judicial candidates independently, the public still perceives a conflict of interest. Perhaps the most obvious example of this occurrence was the contribution made by the CEO of Massey Coal, Don Blankenship, in support of West Virginia Supreme Court candidate, Brent Benjamin. Blankenship spent roughly $3 million independently in support of Benjamin (and in opposition to incumbent Justice Warren McGraw), but only contributed $1,000 directly to Benjamin’s campaign. Benjamin defeated McGraw and cast the deciding vote overturning a $50 million verdict against Massey Coal. This action, of course, led to the Caperton v. A.T. Massey Coal (2009) decision in which the Court ruled that the Due Process Clause required Justice Benjamin to recuse himself. All of this happened even though West Virginia prohibits judicial candidates from personally soliciting or accepting campaign contributions. Simply put, the public is unlikely to distinguish between judges making a direct solicitation for campaign contributions or having an intermediary do so on their behalf.

Even if solicitation clauses do not prevent conflicts of interest, perhaps the majority protected the integrity of the bench by keeping judges from soliciting potential donors directly. There may be something inappropriate about judges appearing before labor groups, corporations, or trial lawyer associations to ask for campaign contributions. However, judicial candidates have long appeared before these groups to solicit campaign support (even if they are prevented from doing so explicitly). It is unlikely that much would change in the absence of solicitation clauses. State supreme court justices already find the process of campaigning unseemly and, though they are prevented from soliciting campaign contributions directly, they are also aware that, in reality, this is what they are doing by appearing before these groups. As Ohio Supreme Justice Paul Pfeifer once colorfully said, “I never felt so much like a hooker down by the bus station … as I did in a judicial race.”

One potential benefit of the Court ruling in favor of solicitation clauses is that it prevents judges from contacting lawyers who are likely to appear before them in court to ask for a contribution. Were solicitation clauses not in place, it is possible — even probable — that lawyers would feel pressure to donate if they are solicited directly by a judicial candidate. Yet, the pressure is just as great if the solicitation comes from the candidate or through an agent of the candidate whose sole purpose is raising money. The lawyer solicited by a fundraising campaign will know that she may have to appear before the judge on whose behalf the campaign is raising funds. She also knows that the judge would be aware if she contributed.

In short, had the Court ruled Florida’s solicitation clause to be unconstitutional, it is unlikely that much would have changed. The crisis that some scholars argue exists regarding judicial legitimacy appears to be more of a crisis in the eyes of elites than in the eyes of the public. There is little evidence that the public in states that elect judges views the courts as illegitimate. Moreover, were the public to express concern, there is no evidence that they distinguish between direct and indirect contributions.

Perhaps the more interesting question going forward is what yesterday’s decision means for campaign finance cases as well as judicial election cases in the future. Although it may be a victory for campaign finance reformers, it is likely to be short lived. There is nothing in Chief Justice Roberts’s opinion to indicate that the Court will reverse its recent trend of deregulating campaign finance. However, the Court now appears to view judicial elections as unique, a position that the majority has not always held (see Justice Scalia’s opinion in White).

In the months and years ahead, the question will be whether the Court will hear other challenges to judicial canons when lower courts have conflicting rulings (e.g., the partisan political activity canon). The constitutionality of those canons may have more of an effect on court legitimacy than the constitutionality of the solicitation clause.

Matthew Streb is a Professor in and Chair of the Department of Political Science at Northern Illinois University. He is the author of several articles and book chapters on judicial elections. He is the editor of Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections (NYU Press, 2007). Currently, he is writing Influencing the Court: The Relationship Between Judicial Elections and Public Policy with Lawrence Baum and David Klein.