On January 20, the day before the five-year anniversary of Citizens United, the Supreme Court will hear yet another case that could roll back campaign finance restrictions, this time for judicial elections. Here is a media guide to some of the legal briefs filed by experts in that case, Williams-Yulee v. the Florida Bar, which warn that allowing judges to solicit campaign donations directly is a recipe for disaster.
Supreme Court Will Decide If Citizens United Can Be Fully Extended To Judicial Elections
Mother Jones: “Thanks To” Citizens United, Judicial Elections Are Now Flooded With Campaign Dollars, Including Dark Money. As Andy Kroll of Mother Jones reported, the crisis of money in politics is now being played out in judicial elections, where “partisan groups realize that donating to judges can get them more influence, for less money, than bankrolling legislative campaigns.” Williams-Yulee will decide if judges can be constitutionally stopped from directly soliciting these partisan groups, as is currently the practice in the majority of states that elect judges, including Florida:
These days, as more candidates for the bench face rough contests -- buffeted increasingly by outside money, thanks to the US Supreme Court's 2010 decision in Citizens United -- state judges around the country often raise six- and seven-figure sums, mount statewide campaigns, and fend off attack ads from groups that don't disclose their donors. This trend has escalated over the last decade and a half as partisan groups realize that donating to judges can get them more influence, for less money, than bankrolling legislative campaigns. After all, the donors often end up with business before the very judges they are helping elect.
These are also the judges that most citizens who interact with the system have to face. Can Americans still trust in getting their fair day in court?
A case pending before the US Supreme Court could inject even more politics into judicial races. In Lanell Williams-Yulee v. the Florida Bar, a county-level judge wants the nation's high court to strike down laws in 30 states blocking judges from personally asking donors for campaign cash. In those states, treasurers and fundraising consultants typically make the ask on behalf of a judicial candidate. Only nine states currently allow judges to solicit donations directly for their campaigns, but in those states, “the road to victory begins with the solicitation of money,” Wallace Jefferson, the former chief justice of the Texas Supreme Court, has written. “The 'ask' is undignified, and the 'give' is fairly compelled.” For those fighting to insulate judges from electoral politics, the elimination of the fundraising ban would be yet another step in the wrong direction. [Mother Jones, November/December 2014]
Most States Decided Long Ago That Banning Judicial Solicitation Was Necessary
Leading Judicial Election Historian: The Widespread Ban Is Part of “Broad Sovereign Powers” Of The States. Fordham law professor Jed Shugerman, author of “the only in-depth book” on the history of American judicial elections, pointed out in his brief for Williams-Yulee that the states' experiment with this form of selection was part of their plan to protect judges from “corrupting influences.” Accordingly, “the States have spoken almost with one voice” to prohibit direct judicial fundraising and the risk of corruption it creates, even if elections are allowed:
Viewed in historical context, in which most States decided to adopt judicial elections as a means of establishing judicial independence, and then to adopt various reforms aimed at curbing abuses and threats to the reality and perception of judicial integrity, the ban on personal solicitation of money is a rare instance in which the States have spoken almost with one voice. Indeed, this prohibition is an obvious step for States that have adopted electoral systems while remaining vigilant to defend against evolving threats of bias and corruption, and the appearance of such.
While "[t]o comprehend, then to codify, the essence of judicial integrity is a hard task," White, 536 U.S. at 793 (Kennedy, J., concurring), the decision to bar candidates from personally requesting money has not been a hard call. That is because the practice of personally asking for money tends inherently to create both the reality and the appearance of bias and undermines public confidence in judicial integrity. Justifiably, States have deemed that practice incongruous with their “vital” interest, recognized by all members of this Court in Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 889 (2009), in ensuring “public confidence in the fairness and integrity of the nation's elected judges.” Allowing such bald, personal appeals for money is no way to “maintain a fair, independent, and impartial judiciary -- and one that appears to be such.” Id. At 890 (Roberts, C.J., dissenting). [Brief Of Amicus Curiae Professor Jed Shugerman In Support Of Respondent, AmericanBar.org, 12/22/14]
Empirical Studies Have Confirmed That The Fear of Corruption Is Well Founded
Scholars Of Law, Economics, And Politics: “Empirical Evidence Shows” A Disturbing Connection Between Judicial Campaign Contributions And Subsequent Decisions. An interdisciplinary group of professors presented the Supreme Court with an overview of their research that demonstrates election fundraising “can affect judicial decision-making and case outcomes.” Although the correlation does not definitely establish causality, their analyses reveal that “donors not only intend to influence judges, but may also experience success in doing so” :
[S]tudies have shown that campaign contributions from business interests, lawyers, and lobbyists can be correlated with favorable decisions in cases before recipient judges. For example, a comprehensive national study of 175,000 campaign contribution records and 2,345 state supreme court opinions -- each related to business interests and published between 2010 and 2012 -- concluded that elected state supreme court justices receiving at least 25 percent of their campaign contributions from business interests voted in favor of business interests in just over 62 percent of cases, whereas elected state supreme court justices receiving no more than 1 percent of their campaign contributions from the business sector voted in favor of business interests in only 46 percent of cases. Because approximately one third of cases before state supreme courts involve business litigants, there is much at stake.
Other studies corroborate the connection between campaign contributions and judicial decision-making. One nationwide study of 21,000 state supreme court decisions published between 1995 and 1998 found that campaign contributions from business groups, labor groups, medical groups, and attorney groups were associated with favorable votes in relevant cases before partisan-elected recipient judges. Studies have also identified a relationship between campaign contributions and voting patterns in labor and arbitration cases. Finally, several researchers have verified empirically that campaign contributions from pro-plaintiff donors can affect judicial behavior.
In fact, empirical analysis demonstrates that contributions to judges who are not likely to share the contributor's view of the law have a much stronger association with subsequent voting patterns than do contributions to more like-minded judges. Empirical analysis also shows that the correlation between campaign contributions and voting patterns tends to disappear when judges face mandatory retirement. These findings suggest that the effect of campaign contributions on judicial decision-making cannot be attributed entirely to donor support for candidates with sympathetic judicial ideologies. [Brief Of Professors Of Law, Economics, And Political Science As Amici Curiae In Support of Respondent, AmericanBar.org, 12/23/14]
Like Other States, Florida Enacted Its Ban In Response To Corruption Scandals
Former Chief Justices Of Florida Supreme Court: Striking Down Ban Would Be “Especially Disastrous For Florida.” Alongside four past presidents of the Florida Bar, three former chief justices of the Florida Supreme Court filed an amicus brief in Williams-Yulee urging their federal counterparts to remember the campaign finance restriction was a specific response to the needs of the state, “which is just one generation removed from some of the worst judicial corruption scandals in our state's history.” According to the former chief justices, the ban on direct fundraising has been “essential” to preventing a repeat of this corruption while “strik[ing] a proper balance between a judicial candidate's right to free speech and the right of future litigants to due process, while placing a minimal burden on the former” :
[The ban] was adopted against the backdrop of extensive corruption occurring within the Florida judiciary. Prior to 1976, Florida Supreme Court justices were elected by popular vote. But a number of scandals threatened to topple the high court. In what reads more like a novel than a history book, A Most Disorderly Court recounts a dark period in Florida's history (during the early 1970s) in which four out of seven justices on the state's highest court resigned following corruption scandals. Two justices resigned in the face of impeachment proceedings. Both had -- among other things -- tried to fix cases in lower courts on behalf of campaign supporters. Another justice retired after being filmed on a “high-roller” gambling junket to Las Vegas paid for by a greyhound track with a case pending before the high court, while others allowed themselves to be lobbied by a lawyer representing the public utilities industry in a case worth millions of dollars to the rate-paying public and even permitted that lawyer to “ghostwrite” the opinion for the Florida Supreme Court. Similar problems also existed at the trial court level in Florida -- during the late 1960's, a notorious circuit court judge required lawyers to walk the gauntlet past his bailiff and make an appropriate campaign contribution before they could present their argument.
Together, these reforms have restored public confidence in an impartial judiciary. Since 1977, only 18 judges in Florida have been removed from judicial office for improper conduct. See Judicial Ethics Advisory Committee, An Aid to Understanding Canon 7, at pp. 4-5 (Nov. 2014). Of the 18 judges that have been removed from judicial office, five were accused of Canon 7 violations. Of the 79 judges whom the Florida Supreme Court has publicly reprimanded, 12 were accused of campaign violations of Canon 7. Thus, Canon 7C(1) has been an effective -- and essential -- tool in severing the direct link between campaign contributors and judicial candidates that was at the heart of the destructive corruption scandals that infected Florida's judiciary during the 1970's. [Brief Of Major B. Harding, Harry Lee Anstead, Stephen Grimes, Neal Roth, John M. Hogan, Buddy Schulz, John A. Devault, III, Henry M. Coxe, III, Richard H. Levenstein, Neal R. Sonnett, Burton Young, And Edward R. Blumberg As Amici Curiae In Support Of Respondent, AmericanBar.org, 12/24/14]
Even After Citizens United, A Different Standard For Judicial Elections Justifies Ban
Campaign Finance Experts: Political Elections And Judicial Elections Are Not Equally Affected By Citizens United. On behalf of good government groups Public Citizen and Democracy 21, former U.S. Solicitor General Seth Waxman pointed out that the “Court's recent campaign finance decisions” recognize that the interests of the state in regulating political elections are distinct from its interests in regulating judicial elections. For example, the currying of favor inherent in representative politics is "[c]ritical to the Court's analysis" in those cases but is anathema in judicial decisionmaking:
[T]his Court's recent campaign finance decisions addressing the scope of the legitimate governmental interest in combating corruption in elections for political office underscore the differences between elections for judicial and political office and the significance of a state's interests in protecting judicial integrity through regulations applicable solely to judicial elections. Critical to the Court's analysis in those cases was the view that favoritism and influence are to some degree inherent and expected attributes of representative politics. Quite the opposite is true of judicial officers: Favoritism, influence, preferred access, and ingratiation have no place in judicial decisionmaking, and all states have compelling interests in protecting the actual and perceived neutrality of judges.
Florida's restriction of solicitation by judicial candidates directly serves those interests. Political contributions to judges can create at least the appearance, and quite possibly the reality, of judicial partiality and harm the judicial system's legitimacy. Although contributions may be an inherent feature of privately financed judicial election campaigns, restrictions targeting solicitation aim at the transaction in the fundraising process that is most likely to create the appearance or reality that justice is for sale: The judicial candidate's direct request for financial support from a donor who is or may be interested in the outcome of cases the candidate, as judge, is supposed to preside over with strict neutrality.
The state interest against which the restriction at issue here must be assessed is the “vital state interest” in “maintain[ing] the integrity of the judiciary and the rule of law.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 889 (2009). Protection of that interest requires that the Court give due regard to the differences between judicial office and political office in determining the nature of the interests that justify restrictions on campaign fundraising. Because both the due process rights of the persons who appear before the courts and the public's “respect for [their] judgments depend ... upon the issuing court's absolute probity,” Repub. Party of Minn. v. White, 536 U.S. 765, 793 (2002) (Kennedy, J., concurring), avoiding appearances of partiality, influence, preferential access, or ingratiation are state interests of the highest order where judicial elections are at issue. [Brief Of Amici Curiae Public Citizen, Inc., And Democracy 21 In Support Of Respondent, AmericanBar.org, December 23, 2014]