It is time to rain on the parade of anyone who is vigorously celebrating the latest U.S. Supreme Court campaign-finance decision. In Williams-Yulee v. Florida Bar, Chief Justice John Roberts, writing for himself and the four liberal members of the court, blessed the ability of states to prohibit judicial candidates from directly soliciting campaign contributions. Campaign-finance reformers celebrated the outcome and Roberts’ decision to side with the liberal wing of the court. Some let themselves wonder if this decision might represent the end of the high court’s march to deregulate our nation’s campaign-finance laws. But those revelers are wrong. The chief justice is nobody’s liberal, or even moderate. And the decision does not represent a sea change in the high court’s otherwise dismal campaign-finance jurisprudence.
The issue in the case was whether states that hold judicial elections could create rules that prohibit judicial candidates from directly asking potential donors for campaign money. About half of the 39 states that hold judicial elections have such rules because they understand that there is something inherently unbecoming about someone who wants to be a judge asking someone else who may have a case before that would-be judge for money. And, of course, it is those who are most likely to argue a case before a would-be judge that are most likely to be the campaign donors in judicial elections. In a world in which campaign donations are generally just the cost of doing business, judicial elections are not qualitatively different from any other kind of elections.
It is important to remember that plenty of unbecoming behavior is still allowed. Judicial candidates can still run ads asking for money. They can still know the identity of their campaign donors, and they can still personally thank those donors. The judicial candidates just cannot actually hold out their hands and accept the donations. They must deploy others to do that.