James Sample on Williams-Yulee and The Future of Judicial Campaign Regulation

The following is a guest post from James Sample of Hofstra, who has been doing very important work in the area of judicial elections, filling a key void left by Roy Schotland’s passing. Here are James’s thoughts:

As Rick’s initial post indicated, Williams-Yulee is a huge victory for those concerned with cash in the courtroom. It is, moreover, a surprise victory for the broader judicial-elections-are-different premise. I tend to believe that the solicitation bans themselves are of little moment, and are perhaps even occasionally counterproductive vis-a-vis their intended aims insofar as they allow states and judicial candidates, having adopted the patina of a solicitation ban, to pretend that the candidates are unaware of who is contributing and/or spending. Whether, at some point, that was accurate, it is rarely accurate in the internet age, at least not where there is, as there certainly should be, robust disclosure. As readers of Rick’s blog know well, contributors, especially major contributors and major independent expenditure supporters, know how to make their support known to those whom they want to know. Is upholding the solicitation ban helpful for the egregiously coercive in-person shakedown scenarios? Yes. The greater value, though, of Williams-Yulee is Chief Justice Roberts’ emphatic rejection of White’s elections-are-elections canard.

What I find most peculiar about the opinion, as Rick’s post noted of course, is Chief Justice Roberts citing Caperton in which he dissented so vigorously, while in Justice Kennedy’s dissent there is nary a mention of Caperton, which he authored, but there is instead a focus on White.

For Justice Kennedy, and despite Justice O’Connor’s years of work and expressions of regret vis-a-vis White, any speculation as to an eroding of the rigidity of his position in White was not only premature, but inaccurate. The ex ante prohibition of speech, regardless of the nature of the office being sought, is clearly, for him, a constitutional non-starter even though, at least in the extreme case, he supports Due Process as a basis of mandatory disqualification based on expenditure support. On both the ex ante and ex post aspects of that, Chief Justice Roberts is now in the opposite camp in at least one narrow circumstance.

Combining the pertinent campaign finance decisions and the two major “canons” decisions, I am left with one overriding impression in terms of prospective judicial campaigns: Why would any judicial candidate even bother soliciting contributions through their campaign apparatus? Expenditures not contributions are, and will be more than ever, the whole ball game.

Justice Kennedy takes an absolutist position that independent expenditures unequivocally cannot corrupt (Citizens United, McCutcheon etc…). In those decisions, not to mention in ATP v. Bullock, in which the Court refused the state of Montana even the opportunity to stand in the well of the Supreme Court and say, to the Court face-to-face, “Yes, independent expenditures can corrupt and we have a documented empirical record contradicting the Court’s conclusory assertions to the contrary.” Justice Kennedy and Chief Justice Roberts are in lockstep on that. I.e., Chief Roberts is copacetic with banning a signed letter seeking a modest contribution, while Justice Kennedy is not. But neither is particularly troubled by independent expenditure support totaling six and sometimes seven figures per spender. It took facts as extreme as those in Caperton to get Kennedy’s support for the modest remedy of ex post recusal. Add in increasingly impotent coordination realities, and no serious, sophisticated judicial candidate should ever come close to needing to engage in the kind of direct solicitation addressed in Williams-Yulee.

In sum, Williams-Yulee is indeed a victory for those who care about the integrity of the courts. Our dear, late friend Roy Schotland would love the judge’s-are-different emphasis. Roy would celebrate the decision and rightly so. He would do so, however, in very much the sober – and sobering – manner that Rick’s excellent LA Times piece does in noting, in particular, that the “campaign finance situation overall remains dire.”

Even in judicial elections, Williams-Yulee won’t change that. Finally, there is one wonderful postscript that seemed almost unthinkable until yesterday: there are now six justices on the current Court who have, in at least one case, endorsed the premise that judicial elections are different. Does that mean the Court might uphold expenditure limits on judicial races? Almost certainly not, but the possibility seems less distant today than yesterday. And it certainly seems less distant than it did six years ago.

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