by Burt Neuborne, Norman Dorsen Professor of Civil Liberties at NYU School of Law. His most recent book, “Madison’s Music: On Reading the First Amendment” (The New Press 2015), argues that effective campaign finance regulation is fully consistent with the First Amendment.
Florida’s ban on personal solicitation of campaign funds by candidates for judicial office recently survived a free speech challenge because, in Chief Justice Roberts’ words, “judges are not politicians.” I fear, however, that the chief justice’s bright-line distinction between “judges” and “politicians” understates the need for independent judgment by “politicians” and overstates the “political” neutrality of judges.
Judges, especially elected judges, exercise “political” power. Does anyone doubt, for example, that the Supreme Court is exercising “political” power in the gay marriage cases? The chief justice is surely right, though, in recognizing that continued faith in our politically powerful judiciary turns on public confidence that elected judges are not merely engaged in advancing the narrow interests of powerful constituents or financial supporters. That’s why the Williams-Yulee decision is correct. But the same may be said about faith in democracy itself. Legislators and executive officials cannot – and should not ‒ behave just like impartial judges. They should have close ties to the people who elected them. Their votes and official actions should generally reflect the self-interested preferences of their supporters. But, as Edmund Burke taught us in his 1774 Address to the Electors of Bristol, there are important occasions in the life of a democracy when even a “politician” with close ties to her constituents should enjoy the appearance and reality of exercising independent judgment free from pressure by financial supporters. Chief Justice Roberts’ bright-line distinction between judges and “politicians” preserves an elected judge’s capacity for such Burkean independence, but obliterates it for legislators and executive officials.
Instead of relying on a tyranny of labels, the Williams-Yulee opinion should trigger discussion of how best to free “politicians” as well as elected judges from the appearance and reality of excessive financial thralldom to their large financial supporters. Maybe then we can begin to rebuild faith in our democracy; hold real elections, not auctions; and insist that our “politicians” occasionally think for themselves.