In a surprise and very important development, the Supreme Court has rejected a First Amendment challenge to Florida’s ban on the personal solicitation of campaign contributions by judicial candidates. Even more surprising, the Court’s opinion (a plurality in part) is authored by Chief Justice Roberts, who usually sides with First Amendment challengers in these election/campaign cases. This is a case which makes it much more likely that limits on money and speech in judicial elections will be upheld, and it seems to offer some broader important nuances on the scope of narrow tailoring in analyzing First Amendment challenges under the First Amendment.
This is a HUGE win for those who support reasonable limits on judicial elections—and getting Roberts on this side of the issue is surprising, welcome, and momentous.
Here are some detailed thoughts.
1. Chief Justice Roberts’ opinion for the Court, with the four liberals, over the dissent of the four more conservative Justices, is unusual—Roberts usually does not side with the liberals in these cases over the objections of the conservative Justices. So what motivated things? It comes from the very beginning of the case: Chief Justice Roberts says that judicial elections are different, and that therefore the First Amendment analysis is different. This is a huge change in Supreme Court doctrine, where in cases like Minnesota Republican Party v. White the Court did not accept such differences as a basis for restricting the speech of judicial candidates. This is an acceptance of Justice Ginsburg’s White, dissent in which she rejected the “unilocular” an election is an election.
2. The one point on which the Chief does not speak for a majority of the Court is in the level of scrutiny. In Part II, the Chief writes that strict scrutiny applies. On that point he loses Justice Ginsburg. This is important, as there is no holding on the level of scrutiny, but even more important is that this is a rare case where a law survives First Amendment strict scrutiny review. Breyer equivocates on this point in a short separate opinion.
3. The state’s interest which lets the law survive strict scrutiny is public confidence in the judiciary. This makes me a bit queasy—because in other areas where the Court has purported to uphold laws to promote public confidence (think voter id laws, Shaw v. Reno expressive harms in the racial gerrymandering context, and the appearance of corruption in campaign finance law), the social science showing that these laws promote public confidence is shaky to non-existent. Nate Persily and others have done important work on this. And Jim Gibson’s important book shows that in some ways judicial elections, even nasty partisan ones, can help with public confidence. Justice Scalia in his dissent comes down hard on this interest.
4.This is also a big, big win for Justice O’Connor, who has been pushing issues of judicial integrity and the need to allow for different rules in the judicial elections context. This is a very big deal which will likely make it much, much easier to uphold a host of different campaign finance and speech rules in the judicial elections context. The Chief’s discussion of how “narrow tailoring” under strict scrutiny is not “perfect tailoring” will help a great deal in this regard.
5. The big question will be whether spending limits and limits on super pacs in judicial elections can now pass constitutional muster. There’s the hint of that in Caperton (though the Chief Justice dissented there and Justice Kennedy was on the other side there). Certainly the door is open now for respectable arguments on this side.
6. It is delicious to see the Chief responding to an argument that this law does not support censorship and is not the modern day version of the Alien and Sedition Acts. I make this very argument against the Chief in my upcoming Plutocrats United book in the campaign finance context.
7. Justice Ginsburg’s concurrence does an excellent job pulling together the social science evidence on how campaign money can skew the decisions made by judges. This to me seems a much stronger basis upon which to uphold the law than simple public confidence.
8. Justice Kennedy’s dissent is the most interesting one (there is one by Justice Scalia, joined by Justice Thomas, and a separate more moderate dissent of Justice Alito). But I see Justice Kennedy’s dissent as not only a dissent to this case, but a defense of his decision in Citizens United. He talks about more speech funded through campaigns being the essence of democracy, and that limits will help incumbents and the well known over challengers. He argues that either voluntary or compelled disclosure of campaign contributions and spending, facilitated by the Internet, does the job of telling voters what they need to know. This seems to me to be his answer to all the criticism heaped on Citizens United. I find it utterly unconvincing, but I’m especially troubled in this case by the pivot of Justice Kennedy to “voluntary” disclosure as perhaps good enough. That makes me worried about his willingness to rethink some compelled disclosure laws. What I find especially unconvincing about Justice Kennedy’s dissent is his unwillingness to even mention his opinion in Caperton, and how it supposedly squares with his views of judicial elections, corruption prevention, and the First Amendment and campaign money.
[This post has been updated.]