Citizens United’s Legacy: Supreme Court Poised To Strike Down Another Key Campaign Finance Law

BY IAN MILLHISER POSTED ON JANUARY 20, 2015 AT 9:01 AM UPDATED: JANUARY 20, 2015 AT 2:27 PM

Imagine you are a lawyer representing one of your firm’s most important clients — a client that provides a huge chunk of your firm’s revenues and that allows you and your law partners to afford your mortgages. The client’s general counsel has made it very clear that they are counting on you to win their case, which could prove very expensive for them if you do not. And you fear that the client may ditch you for another law firm if you are not successful in court.

Now imagine that a judge who could be assigned to hear this case approaches you at a party, and asks you to donate to his or her upcoming reelection campaign. What would you do? And how comfortable would you feel explaining your decision to your client if you turned the judge down?

In Florida, judges and candidates who want to be judges are bound by an ethics provision preventing this situation from ever arising in the first place (eight other states with elected judges have a similar law or ethical rule). Under Florida’s Code of Judicial Conduct, judges and judicial candidates “shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy.” On Tuesday, the Supreme Court will consider the constitutionality of this rule in a case known as Williams-Yulee v. Florida Bar.

This is a campaign finance case, which means that the Florida rule faces an uphill battle before the same Court that handed down Citizens United. Since the Court’s 1976 decision in Buckley v. Valeo, the fate of campaign finance laws has often rested upon what the justices perceive as corruption. Although Buckley held that “contribution and expenditure limitations operate in an area of the most fundamental First Amendment activities,” it also recognized that these First Amendment concerns are overcome when campaign finance regulation is needed “to deal with the reality or appearance of corruption” that arises when candidates receive funds from sources that have a stake in how those candidates might govern.

Yet, in Citizens United and a follow up case called McCutcheon v. FEC, the Roberts Court defined the concept of “corruption” very narrowly. According to Chief Justice John Roberts’ opinion in McCutcheon, campaign finance regulations must “target what we have called ‘quid pro quo’ corruption or its appearance. That Latin phrase captures the notion of a direct exchange of an official act for money.” So, unless a donor offers “dollars for political favors,” McCutcheon says that no corruption exists.

If this standard applies in Williams-Yulee, it is tough to see how the Florida rule survives. The ethics rule sweeps much further than a narrow restriction on judges promising favors to the attorneys who give them money.

Judges, however, are not like other government officials. They are typically tasked with applying objective principles of law, and they preside over matters where lawyers and their clients have a very clear interest in influencing the particular judge or judges who are assigned to hear their case. In truly egregious cases, the Supreme Court — or, most importantly, Justice Anthony Kennedy — believes that judges should be removed from cases involving their most generous benefactors. That was the holding of Caperton v. Massey, which said that an elected state supreme court justice should have recused himself from a case involving a company whose CEO spent $3 million to place that justice on his state’s highest court.

Indeed, the attorneys challenging the Florida ethics rule point to recusal as an alternative to a solicitation ban. As a general rule, laws that implicate the First Amendment stand on weak ground where there are other ways that the state could have achieved the same end, and the lawyers for Williams-Yulee argue that “[r]ecusal rules prevent judges from presiding over matters in which their impartiality might plausibly be questioned, without intruding on First Amendment rights.”

Mandatory recusals, however, only address the problem of what a judge should do when one of their donors actually appears in their courtroom. Appellate judges in particular often preside over cases that have consequences for thousands of even millions of individuals who are not actually parties in the litigation. If the Supreme Court decides to gut Obamacare in a pending case, for example, studies predict that 8 million people will lose their health insurance. Few, if any, of these people are parties in that case.

Interest groups, lawyers and lobbyists, in other words, have a strong incentive to ingratiate themselves to certain judges, even if they are unlikely to find themselves in those judges’ courtrooms. That fact, combined with Kennedy’s past willingness to hold judges to a higher standard than other elected officials, might be enough to distinguish this case from others involving non-judges.

Ultimately, however, if Florida is hoping that Kennedy’s willingness to intervene under the particularly egregious facts presented by the Caperton case will also lead him to save the state’s ethics rule, they should probably expect to be disappointed. As SCOTUSBlog‘sLyle Denniston notes,

Williams-Yulee’s brief on the merits opens strategically with a quotation from Justice Anthony M. Kennedy, the Court’s most predictable defender of the idea that, in politics, money equals speech. In an opinion in 2002, Kennedy wrote that a “state cannot opt for an elected judiciary and then assert that its democracy, in order to work as desired, compels the abridgement of speech.” Kennedy was talking then about a ban on what judicial candidates could say about actual campaign issues, but the comment could be helpful on the money question, too.

Caperton was an anomaly in Kennedy’s history of extraordinary skepticism towards campaign finance regulations. That places Florida in the unfortunate position of hoping that lightning strikes twice.

 

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