[EL] Initial thoughts on SCOTUS Williams-Yulee case

Rick Hasen rhasen at law.uci.edu
Wed Apr 29 07:49:55 PDT 2015


    Breaking News and Analysis: #SCOTUS Upholds Ban on Judicial
    Candidates Personally Soliciting Campaign Contributions
    <http://electionlawblog.org/?p=72092>

Posted onApril 29, 2015 7:12 am 
<http://electionlawblog.org/?p=72092>byRick Hasen 
<http://electionlawblog.org/?author=3>

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 
<http://electionlawblog.org/wp-content/uploads/williams-yulee.pdf>(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. AndJim Gibson’s important 
book<http://www.amazon.com/Electing-Judges-Surprising-Campaigning-Legitimacy/dp/0226291081>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 upcomingPlutocrats United book 
<http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/ref=sr_1_1?s=books&ie=UTF8&qid=1430317830&sr=1-1&keywords=plutocrats+united>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 utterlyunconvincing, 
<http://www.amazon.com/Plutocrats-United-Campaign-Distortion-Elections/dp/0300212453/ref=sr_1_1?s=books&ie=UTF8&qid=1430317830&sr=1-1&keywords=plutocrats+united>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./]

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
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