Court: Corporations May Be People, But 'Judges Are Not Politicians'

Apr 29, 2015
Originally published on April 29, 2015 9:11 pm

If there's one thing that today's Supreme Court doesn't like, it's governmental overreach in regulating political money.

But if there's something the court likes even less, it's the increasing prominence of money in electing America's judges. That's how five justices came to uphold a rule in Florida that prevents judicial candidates from personally soliciting campaign cash.

Chief Justice John Roberts sided with the court's four liberals in rejecting an appeal by Lanell Williams-Yulee, a lawyer who, in 2009, ran for a county court seat in Hillsborough County. Yulee mailed voters a personal letter asking for money; she also posted it online.

The ruling affects the 39 states that elect judges – and it surprised many observers.

The Roberts court hasn't been reluctant to strike down money limits in elections for other offices. But the opinion in Williams-Yulee v. The Florida Bar finds that "Judges are not politicians."

The opinion allows states to limit the free speech of judicial candidates, due to a "compelling interest in judicial integrity." It finds a "regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity." And it reiterates previous findings that while the executive and legislative branches have their own spheres of influence, the judicial branch has only its reputation.

That reputation has been tarnished in recent years by the big money moving into judicial elections. Last year, nearly $300,000 flowed through a Washington-based group, in a bid to unseat the incumbent in a Missouri county court. (It failed.)

Recent trends show the limits of the Yulee decision. Six- and seven-figure sums go into independent expenditures. In the Missouri race, for example, the challenger received $100,000, but an outside group got nearly twice as much for attack ads and mailers.

Critics of big money in politics celebrated the decision. "Pragmatic" is how Matthew Menendez, of the Brennan Center for Justice at New York University, described it. "The majority looks at elections as they really happen, and what people really think about them," he said, comparing it to "the very theoretical approach taken in Citizens United and McCutcheon."

Citizens United is the 2010 case in which the court allowed corporations and unions to finance messages explicitly supporting or attacking candidates. The court majority said these "independent expenditures" wouldn't be corrupting because they would not be coordinated with candidates, while "the appearance of influence or access... will not cause the electorate to lose faith in our democracy." Since then, Super PACs and their billionaire donors have amassed significant political power.

McCutcheon, decided a year ago, eliminated an aggregate limit on how much a single donor could give to candidates in one election. It dismissed the real-world political impact, for example, of giving a congressional leader a large sum, to be distributed to lawmakers of the leader's choosing.

The Yulee opinion stops short of cutting off all contact between judicial candidates and donors. A candidate can still write thank-you notes.

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