Last week, the U.S. Supreme Court decided the case of Williams-Yulee v. State Bar of Florida, ruling that judicial candidates could not directly solicit campaign contributions. This marked the first time that the Roberts Court has ruled in favor of a 1st Amendment regulation in an elections case. At least some reporting about the case suggested it was a big deal, as seen in headlines like “Campaign finance reformers just won a massive victory at the Supreme Court.” In reality, the decision is likely to have very little impact on the actual conduct of judicial elections, or on how the public views those elections. Here is why. First, it is not clear that a judicial candidate’s personally soliciting campaign contributions necessarily makes that individual less impartial than a judge who does not personally solicit contributions.
Moreover, the Court’s decision only allows prohibitions on judges or judicial candidates directly asking people for contributions. The decision permits other individuals to solicit contributions on behalf of a judge. It also allows the judge access to a list of contributors. If the concern is that campaign contributions will limit impartiality, there are still many ways for that to occur.
Second, it is far from clear that public confidence in judges is compromised when they can solicit campaign contributions. This was a key point in Roberts’ opinion: “Judges…cannot supplicate campaign donors without diminishing public confidence in judicial integrity.”
But political scientists have identified many things that can affect judicial decision-making besides an impartial reading of the law, including gender, race, professional experience and public opinion. Despite these findings, the public still views judges as being impartial, at least compared to politicians in other branches of government. Indeed, Roberts mentions that “[t]he vast majority of elected judges in States that allow personal solicitation serve with fairness and honor.”