Special Interest Spending Soars in Illinois High Court Race

TV Ads Campaigns Heat Up in Ohio, Iowa and Michigan

Fueled by the same groups that created the most expensive high court election ever in 2004, an Illinois Supreme Court race has become the nation’s most expensive one-candidate retention election in this decade. TV spending also cracked the $1 million mark in Ohio, and TV ads began airing in two contentious races in Michigan.

With two weeks to Election Day, Illinois Justice Thomas L. Kilbride reported late Monday (Oct. 18) that he has raised nearly $2.1 million toward his reelection. The Illinois Civil Justice League, which is urging voters to oust Kilbride, has raised $561,000 from July 1 through Monday. The money explosion was fueled by national business groups seeking to unseat the incumbent and state-based plaintiffs’ lawyers hoping to retain him.

The total, more than $2.6 million, is extraordinary for a retention election, where only incumbents appear on the ballot and voters decide whether to grant another term. Only one retention election, the 1986 race in which California Chief Justice Rose Bird was ousted, has cost more.

Heavy spending also continued in a retention election in Iowa, where state and national groups are seeking to unseat three justices over a ruling that legalized same-sex marriage. Groups for and against the justices’ retention have reported spending a total of $656,000, despite a several-week lull in TV ads.

Including an additional $30,000 spent in a bid to unseat three Colorado justices, a total of about $3.3 million has been raised or spent on retention elections in 2010. In the entire 2000–2009 decade, only $2.2 million was raised by candidates in such races nationally—barely 1 percent of the nearly $207 million raised by all state high-court candidates.

“We are seeing a dramatic expansion in spending by special interest groups, who want to hold judges to narrow, one-issue agendas, and not to the law and the Constitution,” said Charles Hall, a spokesman for the nonpartisan Justice at Stake Campaign. “Americans believe that campaign cash buys special treatment at the courthouse, so this is a new threat to public confidence in our courts.”

The following are the biggest developments reported by Justice at Stake and the Brennan Center for Justice in their joint web site, “Judicial Elections 2010.” The site includes updates and links to TV ads from states facing high-court elections this year.

Further information about spending on retention and other supreme court elections is available in “The New Politics of Judicial Elections 2000–2009: Decade of Change.” According to the report, published by Justice at Stake, the Brennan Center and the National Institute on Money in State Politics, fundraising by state high-court candidates surged to $206.9 million in the last decade, more than double the $83.3 million raised in the 1990s.

Illinois: Echoes of 2004?  

In 2004, the Illinois Supreme Court race between Republican Lloyd Karmeier and Gordon Maag sparked a national showdown between national business groups and plaintiffs’ lawyers. The final total, a record $9.3 million for a two-way race, was called “obscene” by Karmeier, the winner.

While the numbers remain lower in this year’s retention election, the players are largely the same.

Backing Kilbride’s opponents are two of Karmeier’s biggest bankrollers, the U.S. Chamber of Commerce and the American Tort Reform Association, which have spent $150,000 and nearly $64,000, respectively. Pouring in $180,000 in the last week is the American Justice Partnership, a creation of the National Association of Manufacturers that did not exist in 2004.

Like Maag in 2004, Kilbride has received most of his money—about $1.25 million of the $2.1 million he has raised—from the Democratic Party of Illinois. And as in 2004, a big chunk of the party’s contributions was made by lawyers and law firms, many of them plaintiffs’ litigators.

From July 1 through Oct. 3, the state party received $2.3 million in contributions from individuals and firms (not counting transfers from PACs). Of the 33 contributions of $25,000 or more, 31 came from law firms, totaling more than $1.5 million.

Many of Kilbride’s backers poured out the money for Maag six years ago. Among the biggest players: Clifford Law Offices ($125,000 to Kilbride through Oct. 3, $150,000 in 2004); Power, Rogers & Smith ($125,000 through Oct. 3, $200,000 in 2004); Cooney and Conway ($125,000 this year, $140,000 in 2004); and Corboy & Demetrio ($100,000 through Oct. 3, $100,000 in 2004).

Kilbride has dominated the airwaves, spending an estimated $882,500 on air time to reach viewers in his north-central Illinois district.  According to data compiled by TNS Media Intelligence/CMAG for the Brennan Center, Kilbride leads all spenders nationally on high-court TV ads in 2010. The Civil Justice League produced an anti-Kilbride radio ad, although many radio stations refused to air it because of questions about the ad’s accuracy.

Kilbride was part of a 4–2 majority in February 2010 that overturned limits on medical malpractice awards—the third time the court has taken such a position. If unseated, he would be replaced with an interim appointmnet, followed by a competitive partisan election in 2012. Attacks against him focus on his record in criminal cases. Kilbride’s ads are promotional in tone and, in an apparent rebuttal to the Civil Justice League, include endorsements from law enforcement officials. The ad, called “Tough on Crime,” is available at the Brennan Center’s “Buying Time 2010” page.

Iowa: After Lull, New TV Is Planned

Iowa remains one of the nation’s most closely watched contests, and in a report filed today (Oct. 19), the National Organization for Marriage reported that it is spending $200,000 for a second TV ad seeking to unseat three justices who were part of a 7–0 ruling that overturned a ban on gay marriage.

After spending a total of $235,000 on TV ads in September, the National Organization for Marriage had reported no new spending in recent weeks, and the ads had dried up. The new report filed by the New Jersey-based group has signaled that the TV ad wars are likely to continue until Election Day.

Total social conservative spending to unseat Chief Justice Marshus Ternus, and Justices David Baker and Michael Streit has now reached $539,000. Iowa for Freedom has reported spending $89,755, and the conservative Washington-based Family Research Council has spent a total about $14,700 more.

Fair Courts for US, a group led by former Republican governor Robert Ray that seeks to retain the three justices, reported spending $117,500, primarily for mailings and polling.

The Iowa election featured prominently today in a USA Today editorial titled, “In too many states, judges face reprisals for unpopular rulings.”

Ohio: Chamber Rules the Air

The Partnership for Ohio’s Future, an arm of the Ohio Chamber of Commerce, has been the prime advertiser, spending an estimated $700,000 on TV air time, according to TNS/Brennan data. A total of $1.1 million in air time has been purchased, with Republican Justices Judith Lanzinger and Maureen O’Connor spending about $200,000 on TV air time apiece. All of the ads have been positive and promotional in tone.

The Democratic candidates, Chief Justice Eric Brown and appellate Judge Mary Jane Trapp, have not run ads.

Michigan: State GOP Ads Begin Air Campaigns

The Republican Party of Michigan, one of the leading “super spender” organizations in that state for the last decade, became the first group to air ads in a race that many expected to be among the nation’s most expensive this fall.

The state GOP, which has spent an estimated $357,000 on air time for two ads called “Your Choice,” favors incumbent Justice Robert Young, who is being challenged by Judge Denise Langford Morris, and Judge Mary Beth Kelly, who is seeking to unseat recently appointed Justice Alton T. Davis. The  Republican Party spent an estimated $2.6 million in 2000–2009 Michigan high-court elections, according to the 2000–2009 “New Politics” report, making it the 10th-highest-spending group nationally for the decade.

Clear the Bench Running on Empty?

Clear the Bench Colorado, a group seeking to unseat three justices over rulings that it said improperly raised taxes, appears to have little financial wherewithal. In its original filings as an issues group, Clear the Bench reported raising $33,037, and spending $30,912. After registering as a political action committee this month, Clear the Bench has reported raising just $359.

TV Spending Through October 17, 2010

Nationally, $3,851,050 has been spent on air time in 2010, including general election and primary ads. Including $4.6 million spent on TV ads in 2009, the current total for the 2009–2010 election cycle is approximately $8.4 million. The final 2007–08 TV total was $26.6 million, the highest TV ad total ever for a two-year election cycle.

From August 1 through October 17, $2,848,710 has been spent on general election TV ads in ten states.  (Ads in the general campaign season have aired in Alabama, Colorado, Illinois, Iowa, Michigan, Montana, North Carolina, Ohio, Texas, and West Virginia.)  Ohio has seen the most spending on TV ads to date, with $1,103,410 spent in support of two Republican candidates.  

Through October 17, the highest total for spending on TV in a single race is in Illinois, where Justice Thomas Kilbride has spent $882,550 in his bid for retention. That is more than four times what any individual candidate has spent on television advertising in the general election; the next highest spenders are Ohio Justices Judy Lanzinger (at $200,730) and Maureen O’Connor (at $201,720).  A special interest group, The Partnership for Ohio’s Future, has spent an additional $700,000 on TV ads that support Lanzinger and O’Connor.

In judicial elections, candidates typically have such low profiles that almost all advertising is done in the very last weeks before an election, making accurate predictions for the 2010 November election season difficult.

“Voters don’t have nearly as much information about judicial candidates as they do about candidates for Congress or the state house, so television ads run in the very last weeks of the election season are crucial in introducing judicial candidates to voters,”  said Adam Skaggs, counsel at the Brennan Center.  “In the two weeks before Election Day, voters in states with high court elections will see increased television advertising as judicial candidates make their case to voters and political parties and special interests seek to define the candidates they support or oppose.”

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The Justice at Stake Campaign is a nonpartisan national partnership working to keep our courts fair, impartial and free from special-interest and partisan agendas. In states across America, Campaign partners work to protect our courts through public education, grass-roots organizing and reform. The Campaign provides strategic coordination and brings organizational, communications and research resources to the work of its partners and allies at the national, state and local levels. For information, visit www.justiceatstake.org.

The Brennan Center for Justice at New York University School of Law is a nonpartisan public policy and law institute that focuses on fundamental issues of democracy and justice. The Center works on issues including judicial independence, voting rights, campaign finance reform, racial justice in criminal law and presidential power in the fight against terrorism. Part think tank, part public interest law firm, part advocacy group, the Brennan Center combines scholarship, legislative and legal advocacy, and communications to win meaningful, measurable change in the public sector. For more information, visit www.brennancenter.org.

TV Methodology
All data on ad airings and spending on ads are calculated and prepared by TNS Media Intelligence/CMAG, which captures satellite data in that nation’s largest media markets.  CMAG’s calculations do not reflect ad agency commissions or the costs of producing advertisements.  The costs reported here therefore understate actual expenditures; the estimates are useful principally for purposes of comparison of relative spending levels across states.

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