With all the buzz about the recent high court same-sex marriage arguments, a little something to celebrate slipped through the media cracks. The marriage equality decision is weeks, if not months away, but another ruling on a case Democracy Tree reported on in January of this year came down in favor of placing limits on certain kinds of campaign contributions in judicial elections that will affect a majority of states — including Michigan.
Yes, this Supreme Court actually got something right. The case they ruled on, Williams-Yulee v. The Florida Bar, presented far-reaching ramifications for campaign finance ethics within the nation’s judiciary — the one branch of government which, to varying degrees, remains insulated from much of the direct corruption of the monied few, emphasis on the word direct.
The case stems from the failed candidacy of Lanell Williams-Yulee who, after losing her bid for a county judge seat, she was publicly reprimanded and ordered to pay a fine for violating Canon 7c(1) of the Florida Judicial Code of Conduct which stipulates that a candidate “for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds.” In the course of her campaign, Williams-Yulee had signed a letter sent to voters in which she personally solicited campaign contributions. Citing First Amendment protections, she challenged the finding, but the Florida Supreme Court ruled against her.
Under rules found in 30 of the 39 states which use elections for selecting judges, Michigan among them, judicial candidates are strictly forbidden from personally soliciting direct campaign contributions — all fund-raising must be conducted indirectly through a campaign committee. Michigan takes it a step further, prohibiting candidates from even directly seeking political endorsements.
These rules may seem meaningless in the face of the overwhelming influence of third-party issue ads in judicial races — dark money, that often goes unreported. The problem is particularly acute in Michigan where judicial races are dominated by so many shadowy contributors. The compelling reason to keep this restriction on judicial campaign conduct is both principled and practical. It is simply incorrect to believe that all third-party advocacy is necessarily welcomed by judicial candidates, or that implicit quid-pro-quo exists in abundance. Therefore, maintaining the barrier acts as a protection for judicial impartiality, albeit a flawed one.
And, late last month the Supreme Court agreed, ruling against Williams-Yulee, thereby keeping judicial campaign conduct rules in place, barring judges from personally soliciting campaign funds.
Florida Supreme Court Justice Barbara Pariente explained the importance of the ruling:
“It’s an important recognition of the difference between the two political branches and the judicial branch. The court’s position is articulated as recognizing the compelling need to protect the integrity of the judicial system, and to promote the public confidence in the fairness and impartiality of the judiciary.
In the judicial branch we are not accountable to the will of the majority, or to popular opinion. Judges must feel free and the public must believe that judges make rulings not based on who has contributed or who is threatening to remove them from office if they do not like an opinion.”
Pariente’s last point is particularly resonate in several states where political operatives and lawmakers have recently made efforts to remove judges over dissatisfaction with rulings enforcing state-level constitutional requirements for adequate school funding, and on courts overturning bans on same-sex marriage.
Chief Justice John Roberts wrote in his majority opinion:
“Judges are not politicians, even when they come to the bench by way of the ballot. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.”
The ruling opens speculation that Roberts has an eye on his legacy at this point in his tenure, and seems to be moderating his more strident stance on campaign finance as was found in the Citizens United and McCutcheon decisions. Apparently the concept that money is speech does have its limits. In a piece titled “Keeping Up Appearances”, the London-based Economist put it this way:
“Chief Justice Roberts is clearly considering the legacy of his court. The majority opinion in Williams-Yulee is, more than anything else, a sign of his fervent desire to cultivate the appearance of impartiality in America’s judiciary, including and especially its highest court.”
This portends well for the upcoming marriage equality ruling. Even the most conservative justices don’t wish to see their legacy on the wrong side of history.