Cross-posted at American Prospect
Record special-interest spending on state supreme court elections in 2016 drew less notice than Donald Trump’s assault on democracy norms, but the upshot is nevertheless dangerous: an erosion of the impartiality of the nation’s courts.
Uncapped and underreported outside spending by interest groups dominated judicial elections in 2016 as never before. Special-interest groups spent nearly 50 percent more on TV ads in contests for powerful state supreme court seats than they had in the previous presidential election cycle—$20 million compared with the previous high of $13.5 million in 2012. For the first time, TV spending by deep-pocketed outside groups outstripped spending by the candidates themselves, hitting 55 percent compared with 38 percent in the last presidential election cycle, and diminishing candidates’ ability to control their own messages. A high proportion of that spending happened with zero public disclosure.
Since 2004, 19 states have seen at least one million-dollar-plus contest for their state’s top court. In 11 of those 19 jurisdictions, more than half the judges on the state supreme court bench are survivors of these big money brawls.
That leaves a heavy cloud hanging over the integrity and fairness of much of the nation’s state court system, where 95 percent of cases are filed. From Louisiana to Michigan, West Virginia to Kansas, often-shadowy groups spent millions to put favored judges on state courts. The inevitable result of this spending, including hefty chunks from trial lawyers, oil and gas interests, and billionaire charter school supporters, among others, is an erosion of the perception and reality of impartial courts, and equal justice central to the rule of law.
To be sure, many spenders would no doubt say that their goal was to bolster the judicial branch by supporting better candidates. But the growing role of outside groups (some, it appears, not fully independent of the candidates they support) threatens judicial impartiality over the long term.
Especially disturbing is the outsized role of secret money: Nearly all of the interest-group spending in 2015–2016 judgeship contests flowed from groups that are not fully transparent about donors. That’s because loopholes carved by Citizens United v. FEC and related rulings allow big spenders to circumvent caps on direct contributions to judicial campaigns, as well as disclosure mandates. Only 4 percent of outside TV spending in the latest go-round came from groups whose contributors are entirely transparent.
Donor secrecy is particularly troublesome in the judicial context. It denies voters information they should have, potentially skewing outcomes. And it can make it hard, if not impossible, to identify judicial conflicts, much less avoid them, especially given flimsy rules governing when judges have to step aside from cases involving major financial supporters. Stricter disqualification rules are not the whole answer here, but they might make influence-seekers less inclined to invest in incumbent and would-be judges.
This year’s record outside spending highlights just how much judicial races have come to look like today’s dysfunctional campaigns for political office. The holders of elective executive and legislative posts, at least, are expected to be responsive, within bounds, to their supporters and prevailing political winds. Judges are supposed to be neutral. Indeed, the legitimacy of court rulings depends in large part on judges being perceived as above and beyond ordinary politics and partisan or ideological obsessions—not merely as politicians in black robes.
As we noted in October, unlimited spending by special interests and problematic secret money are undermining the credibility of state courts. The impact extends beyond the veterans of unpleasant judicial warfare themselves. Consciously or not, other court members, having witnessed what occurred at close hand in their colleagues’ elections, may tailor their votes on certain matters to avoid becoming a target when their own election comes around.
Although most judges work hard to maintain their impartiality, concern about altered judicial behavior is not far-fetched. Just look at Washington state, where Bill Gates and other charter school enthusiasts backed groups opposing justices who had ruled against a charter school law they supported. Might the possibility of future billionaire-backed TV ads create a pull the next time judges on the court hear a case about charter schools?
Moreover, while more research is warranted and causality can be hard to nail down, studies indicate that as the number of judicial campaign TV ads in a state increases, judges become less likely to vote in favor of criminal defendants—presumably out of fear they will be subject later on to distorted attacks that portray them as soft on crime, a common tactic deployed against incumbent judges.
Fundraising pressures can also have an impact. A 2016 analysis found that as judges receive more campaign money from political parties and allied interest groups, they become more likely to favor their own party in election cases—a dynamic that largely disappears when the judge no longer faces re-election (and does not need to worry about currying favor with moneyed partisan interests). A survey of state judges back in 2001, when high-cost judicial races were just becoming a trend, found that nearly half of those responding thought campaign contributions had at least some impact on judicial decisions, a dismaying reality many state judges will acknowledge today.
“The founders realized there has to be someplace where being right is more important than being popular or powerful, and where fairness trumps strength,” former U.S. Supreme Court Justice Sandra O’Connor has explained. “And in our country, that place is supposed to be the courtroom.”
Rescuing that ideal from the rising sea of secret special-interest money is urgent business. For now, we’re stuck with a quiet but destructive legacy of the fall election: more top state judges and courts tainted by the aggressive spending of disclosure-averse outside groups. Although largely obscured by Donald Trump’s rise, judicial campaign spending now imperils the fairness of many elected state supreme courts as judges take up their dockets for 2017.
Cathleen Lisk of the Brennan Center contributed research assistance to this story.