THE SUPREME Court has rightly upheld a Florida ethics rule that prohibits judges from personally soliciting campaign contributions. The case involves a lawyer, Lanell Williams-Yulee, who in 2009 sent out a letter announcing her candidacy for a county judgeship and asking for donations. The state bar fined her for soliciting the contributions, and she challenged the punishment, saying it violated her First Amendment right to free speech. The Supreme Court decided April 29 that her free speech could be curtailed to protect the integrity of the judicial system.
In writing for the majority, Chief Justice John G. Roberts Jr. declared that it was unseemly for judges to be passing the hat, personally, among those who might appear before the bench, such as lawyers and litigants. In 39 states, voters elect trial or appellate judges, but many states prohibit the candidates from personally soliciting contributions for reasons that the court embraced. “Simply put,” the court said, “Florida and most other States have concluded that the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.” Of course, as we have argued before, it would be even better to abolish the entire system of electing judges and appoint them instead, but that is not happening any time soon.
Judges are supposed to be above the fray while politicians are in the middle of it. There’s good reason to treat them differently. Judges should not be grubbing for cash, while campaign donations and fundraising are deeply entrenched in American political culture.
Yet there is a troubling illogic in the way the court sees the power of money in politics. The majority repeatedly and forcefully argued in this case that money can corrupt. Asking for money creates “an appearance of impropriety,” a dynamic which “inevitably creates pressure,” and judges “cannot supplicate campaign donors without diminishing public confidence in judicial integrity,” the court found. All well and good. But isn’t the very same danger present in the other two branches of government? In the Supreme Court’s Citizens United decision of 2010, which opened the floodgates to unlimited contributions from corporations and unions, the court found that independent donations are a form of protected free speech under the First Amendment. It declared that such contributions “do not give rise to corruption or the appearance of corruption.” And, the court said, “there is only scant evidence that independent expenditures even ingratiate.”
Judges and politicians have different functions, but integrity is integrity for everyone. It is hard to see how the court can find that the corrupting influence of money on judges is so serious that it justifies curtailing First Amendment rights to free speech, while separately ruling that unlimited corporate donations are the embodiment of protected free speech and do not corrupt elections for Congress and the presidency. The corrupting influences are the same, and the court would do well to recognize it.