The Court’s campaign finance jurisprudence has come under just criticism for its incoherence, and today’s decision on judicial campaign finance does not mark a step toward improvement.  There is much to be said about the case, but a good starting point is the question of whether Chief Justice Roberts is right to say—in fact, to assert flatly—that “judges are not politicians.” Williams-Yulee v. Florida Bar, No. 13-499, slip op. at 1 (2015).

The Chief Justice is joined in this view, quite emphatically, by Justice Ginsburg, who argues, as she has before, that judges do not participate in representative democratic processes—and so are not properly seen to be politicians.  Over a decade ago, in Republican Party of Minnesota v. White, Justice Scalia, then writing for the Court, had countered that the distinction drawn between judicial and other elections had been exaggerated: “the complete separation of the judiciary from the enterprise of “representative government”…is not a true picture of the American system.” 536 U.S. 765, 784.  In the case today, the Court doubles down on the contrary proposition.

Of course, when campaigning for offices, judges are politicians: they are doing what politicians do, and as the Chief Justice concedes that they do:

 [Judicial ] candidates can write letters, give speeches, and put up billboards. They can contact potential supporters in person, on the phone, or online. They can promote their campaigns on radio, television, or other media.

Williams-Yulee at 17.  But somehow they are not politicians when engaged in political campaigning.  The Chief Justice insists that the State does not have to “treat judicial candidates like campaigners for political office”, id. at 1, and then describes them as just such campaigners.

Of course, the means the candidates pursue to win include raising money from supporters.  And to raise the money, they suggest what kind of judge they intend and even commit to be, and those who contribute to their campaign might have entirely legitimate expectations that their performance will match the promise.

It is not much of an answer to argue that once on the bench, the judges are obligated to consider and rule on their cases impartially, considering fairly the facts and the law. In similar ways, legislators once elected, while responsive to those who elected them, must also abide by a Code that holds them to standards of ethical conduct in carrying out their duties.  Certain of these standards impose a duty of impartiality and attention only to the merits of matters before them.   See, e.g. House Committee on Ethics, Highlights of the House Ethics Rules (February, 2013) (counseling there can be “no preferential treatment for the Member’s supporters, contributors, or friends—treat all constituents fairly, and on the merits of their claims.”)

Whether elected officials tend to these requirements all, most, or only some of the time, is another question.  The larger point is that in theory—and the Court is operating here on the level of theory—elected legislators are not politicians all the time: they, too have fiduciary obligations.  When they are campaigning for office, they are unquestionably politicians—just like those who campaign for judicial office.  As Justice Scalia suggested in White, the differences between judicial and other candidates should not be exaggerated.  The Roberts opinion goes well beyond exaggeration and converts a question of degree into one of kind.

This is one major thread of incoherence.  Another is found in the mode of argument the Court adopts to endorse the precise rule before it, which prohibits the judge from personally soliciting campaign funds.  Yulee pointed out that her authorized committee may raise funds for her, and that she could directly thank the donors, which might be taken to put into question the whole asserted point of the Florida rule—to separate the candidate from fundraising and to enhance “public confidence” in the judiciary.  The Chief insists that it makes a world of difference when the candidate personally solicits the money.  The “identity of the solicitor matters,” he writes, “ as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest.” Williams-Yulee at 14.

What might this show?  Pursuing the analogy, it could also be pointed out that Girl Scouts often have their parents and friends on hand to assist.  Assuming that a parent of the Girl Scout at some point manages the table and makes the appeal on her child’s behalf, would the passerby feel less inclined to lay out $4 for a box of Thin Mints or Samoas?  As far as the interested purchaser is concerned, what matters is buying from the Girl Scout—helping her meet her goal and supporting her cause (and acquiring the cookies).

Neither in its discussion of who qualifies as a “politician” nor in its choice of analogies, does the Court turn in a commanding performance in Williams-Yulee. Another occasion has passed when campaign finance jurisprudence could have been left in better shape than before, and it was not.

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