WASHINGTON -- When it comes to campaign finance law, Chief Justice John Roberts taketh away even as he giveth.
On Wednesday, the Supreme Court upheld a state campaign finance law banning judicial candidates from soliciting contributions for their elections in Williams-Yulee v. Florida Bar. The majority opinion, written by Roberts, was a surprising move by a court that has recently been hostile to all campaign finance regulation. But it also contained a line that suggested just how comfortable this court may be with the malign influence of money in politics.
In explaining why judges are different from politicians -- and, therefore, why courts should distinguish judicial elections from legislative and executive elections when it comes to campaign finance rules -- Roberts wrote that it is vital that judges not be responsive to those who put them in office, but serve as neutral decision-makers.
On the other hand, he wrote, "Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such 'responsiveness is key to the very concept of self-governance through elected officials.'”
That quote-inside-a-quote comes from another Roberts-written decision, the 2014 McCutcheon v. Federal Election Commission ruling that struck down aggregate campaign contribution limits. What is interesting about the whole passage is how Roberts redefined, from last year to this, the people to whom politicians are supposed to respond.
In McCutcheon, he wrote, “Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.”
From McCutcheon to Williams-Yulee, the chief moved from saying that politicians are naturally responsive to “constituent orders” -- that is, the views of the voters who elected them -- to suggesting they should be responsive to “the preferences of their supporters” -- a broader term that sweeps in the donors who back them.
In Williams-Yulee, Roberts specifically added that a judge should not "provide any special consideration to his campaign donors" -- leaving the clear implication that politicians, of course, do that.
As Think Progress has pointed out, the language is problematic in terms of how Roberts, and perhaps the other four conservative justices, views the nature of democratic representation.
Of course, the subtle shift in language could be unintentional, as University of California-Irvine election law professor Rick Hasen points out.
“It could be an inadvertent change, or it could be a response to the criticism from many of us after McCutcheon for his equating donors with constituents,” Hasen said.
Or it could show a continued drift toward redefining democracy in non-egalitarian terms, as Paul S. Ryan, legal counsel for the Campaign Legal Center, argues.
“This shift in language by Chief Justice Roberts seems consistent with his steady migration toward greater and greater protection of the ability of the wealthy to control our government,” Ryan said. “Once upon a time he recognized the job of officeholders as representing constituents. Now the Chief Justice has declared that a politician’s job is representing supporters, and has implied that it’s okay for officeholders to give special consideration to their donors. Chief Justice Roberts’ vision sounds more like plutocracy than democracy.”