A cruise missile that might as well have been called Citizens United II narrowly missed Washington and 29 other states Wednesday.
The missile — a newly decided Supreme Court case — could have further warped America’s curious custom of electing judges. It involved a Florida lawyer who’d run for a court seat and wound up getting fined by that state’s supreme court for personally soliciting campaign contributions.
No one was telling her she couldn’t raise money. Florida’s code of judicial conduct — like Washington’s code — allows candidates to form committees that raise money for them. In the 39 states where court seats are dictated by elections, fund-raising is an unavoidable part of the system.
The question was whether Florida or any other state could forbid judicial candidates from making the ask personally, whether in person or through mailings. The distinction between personal requests and committee requests might seem small, but it keeps a judge or would-be judge at arm’s length from donors. It’s also a modest safeguard against incumbents coercing money out of people who may appear before them in court someday.
But the rule against personal solicitation restricts money-raising, and the court’s conservative majority doesn’t like such restrictions. Its most notable ruling in favor of big money was Citizens United, a 5-4 decision in 2010 that struck down limits on independent political spending by corporations and unions.
Many court-watchers expected the Florida case to be a replay of Citizens United. But Chief Justice John Roberts — who had signed that ruling — switched sides.
One passage of his opinion ought to be required reading in civics classes:
“Judges are not politicians, even when they come to the bench by way of the ballot. And a state’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office.
“A state may assure its people that judges will apply the law without fear or favor — and without having personally asked anyone for money.”
Roberts noted that Florida’s current code of judicial conduct was adopted in response to a string of corruption scandals that led to the resignations of four state supreme court justices.
Florida’s rule was born of bitter experience; many other states have seen similar corruption in their judiciaries.
The very practice of electing judges opens the door to wealthy people who believe their interests will be served by friends in black robes. One of the worst horror stories in recent years is a case in which a mine owner lost before the West Virginia supreme court — then spent $3 million to unseat one of the justices who voted against him.
The money helped elect an ally of the mine owner, and the new justice voted to reverse the original ruling. Because there was no outright bribe, it was all perfectly legal.
The Florida case involved piddling amounts of money. But had it gone the other way, some candidates for state supreme courts would inevitably have wound up like candidates for national political offices, hitting up every multimillionaire in sight to fill their war chests.
Washington is fortunate in that its Supreme Court has a clean record. But it would be tempting fate, here and in other states, to let candidates for the bench start panhandling for campaign cash.