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Campaign Money Patterns Entering New Phase in 2012 Judicial Races

Judicial candidates spent more than $4.6 million in television advertisements this primary season, according to data released by the Brennan Center for Justice and the Justice at Stake Campaign, in an election cycle where changing spending patterns could signal a new phase in the decade-long spending battle to influence America’s state courts.

September 13, 2012

Special Interests Are Spend­ing Millions to Capture Our Courts, And They Are Succeed­ing

For Imme­di­ate Release

Contact: Seth Hoy, Bren­nan Center for Justice, seth.hoy@nyu.edu, 646–292–8369 or Charles Hall, Justice at Stake, chall@justiceats­take.org, 202–588–9454

New York – Judi­cial candid­ates spent more than $4.6 million in tele­vi­sion advert­ise­ments this primary season, accord­ing to data released by the Bren­nan Center for Justice and the Justice at Stake Campaign, in an elec­tion cycle where chan­ging spend­ing patterns could signal a new phase in the decade-long spend­ing battle to influ­ence Amer­ica’s state courts. 

Iron­ic­ally, the cumu­lat­ive effects of a decade of record-setting spend­ing could lead to less spend­ing in some states.  Early reports suggest that some tradi­tion­ally high-spend­ing states will see less compet­it­ive elec­tions, due to the increas­ing domin­a­tion of their state courts by a single party after a decade of record spend­ing.

At the same time, tradi­tion­ally low-cost reten­tion elec­tions will see high levels of spend­ing as interest groups pour money into unseat­ing judges.  Super PACs are also poised to inject money into judi­cial races, with the poten­tial to trans­form how campaigns are fought.

“Money and special interests continue to trans­form judi­cial elec­tions around the coun­try,” said Alicia Bannon, coun­sel in the Bren­nan Center’s Demo­cracy Program.  “We are seeing uncon­tested races in tradi­tion­ally high-spend­ing states like Alabama and Ohio, where big money over the past decade delivered the high court to a single party.  In these states, over­all spend­ing is likely to be down this year.”

“The new polit­ics of judi­cial elec­tions is play­ing out differ­ently in differ­ent states, but the threat every­where is the same,” said Bert Branden­burg, exec­ut­ive director of Justice at Stake. “Special interests are spend­ing millions to capture our courts, and they are succeed­ing.”  

Nation­ally, there are 20 states with contest­able state Supreme Court seats in 2012, with a total of 46 seats at stake, while 25 high court judges in 13 states face one-candid­ate reten­tion elec­tions, in which voters choose whether to give incum­bents another term.

National TV spend­ing data for judi­cial races, as well as links to ads, are avail­able at “Judi­cial Elec­tions 2012,” a new web page jointly hosted by the Bren­nan Center for Justice and the Justice at Stake Campaign.  The site will provide regu­lar updates on TV ads, fundrais­ing, and key polit­ical play­ers in 2012 state high-court elec­tions.  Addi­tional analysis is also avail­able at the Bren­nan Center’s “Buying Time 2012” web page.

EARLY FIND­INGS IN 2012

1. Primary spend­ing on TV advert­ise­ments reached new heights, but some tradi­tion­ally high-spend­ing states are expec­ted to see lower spend­ing over­all.

Based on estim­ates from TNS Media Intel­li­gence/CMAG, TV advert­ise­ments this primary season surpassed $4.6 million, with advert­ise­ments appear­ing in seven states (AL, AK, IL, MT, OR, TX, WV).  These figures are more than quad­ruple the estim­ated TV spend­ing in 2010’s primar­ies, when candid­ates in three states spent just over $1 million, and top the previ­ous record $3.8 million spent in 2004 in nine state primar­ies. 

But a differ­ent picture is emer­ging for the Novem­ber general elec­tions in Alabama and Ohio, two tradi­tion­ally high-spend­ing states.  While both states have led the nation in judi­cial elec­tion spend­ing over the past decade, there has recently been a signi­fic­ant drop in Demo­cratic candid­ates with strong finan­cial back­ing as Repub­lic­ans have taken control of both states’ supreme courts (see charts).  Novem­ber elec­tion spend­ing began fall­ing in both states in the latter part of the decade, and spend­ing on this year’s Novem­ber elec­tion almost certainly will continue to fall compared with previ­ous years.

Since 2006 in Ohio, and since 2010 in Alabama, Demo­crats in Alabama and Ohio have fielded only a few modestly funded candid­ates. In Alabama, Repub­lic­ans hold all nine of the high court’s seats, and Demo­crats this year have chosen to put forward a candid­ate for only one of five contested seats. In Ohio, the only Demo­crat among the high court’s seven justices gained her seat through a governor’s appoint­ment, and she faces a stiff chal­lenge from a GOP candid­ate. The two GOP incum­bents face chal­lengers that have repor­ted virtu­ally no contri­bu­tions to date.*

At the same time, winning justices in these states continue to depend heav­ily on a small number of super-spender groups back­ing their elec­tions.  In Alabama, for instance, the Busi­ness Coun­cil of Alabama is a top finan­cial supporter of seven of the court’s nine justices, while the Ohio Cham­ber of Commerce has spent heav­ily to elect five of the Ohio Supreme Court’s seven justices.  Accord­ing to a recent study by the progress­ive Center for Amer­ican Progress, rulings in Alabama and Ohio have swung sharply toward busi­ness interests as candid­ates backed by the busi­ness lobby gained a decis­ive advant­age in state court elec­tions over the last 10–15 years.

“The simil­ar­it­ies in Alabama and Ohio suggest that spend­ing on judi­cial elec­tions may occur in stages,” said Adam Skaggs, senior coun­sel at the Bren­nan Center.  “Spend­ing spikes while oppos­ing sides battle for control in key states, and then falls sharply, along with elect­oral compet­i­tion, when the court elec­tions lead to a clear winner and a clear loser over several cycles.  In states with captured courts, a decline in over­all elec­tion spend­ing does not mean that special interests have aban­doned their efforts to influ­ence the courts; it just means that one side has won the current phase of the arms race.”

2. While some states are fall­ing back in spend­ing, others are step­ping up to take their place.

Despite expec­ted reduced spend­ing in states with captured courts, high-cost judi­cial races are likely to continue to be seen across the coun­try. 

Judi­cial races will likely remain costly in states where high courts remain closely divided, such as Michigan, which had the nation’s most expens­ive judi­cial elec­tions in 2010, and which has three races for Supreme Court seats this year.  In West Virginia, campaign finance disclos­ures indic­ate that candid­ates have already raised more than $2.5 million in connec­tion with races for two Supreme Court seats. 

Tradi­tion­ally low-cost reten­tion elec­tion races are also poised to attract special-interest dollars, includ­ing in Iowa and Flor­ida.  In Iowa, three state high court Justices lost their seats in 2010 follow­ing a $1 million “Vote No” campaign, launched after the court’s unan­im­ous decision legal­iz­ing marriage for same-sex couples.  This year, Justice David Wiggins, who also parti­cip­ated in the marriage decision, faces a reten­tion elec­tion.  Oppon­ents have announced their inten­tion to campaign for Wiggins’ ouster.  

In Flor­ida, a tea party-linked group Restore Justice 2012 has announced a campaign against three Justices who voted with the major­ity in a ruling reject­ing a consti­tu­tional amend­ment to allow the state to opt-out of federal health care reform.  This announce­ment has already triggered unpre­ced­en­ted fundrais­ing: While no Flor­ida Justices repor­ted receiv­ing campaign contri­bu­tions between 2002 and 2010, the three Justices facing this year’s reten­tion elec­tions have already repor­ted rais­ing $974,826.

3. Super PACS may influ­ence judi­cial elec­tions

This elec­tion cycle may also see super PACs play­ing a role in judi­cial races.  In Illinois, the pro-choice group Personal PAC created the state’s first super PAC in May, follow­ing a court victory chal­len­ging Illinois’s campaign finance laws.  Prior to the creation of its super PAC, Personal PAC reportedly spent $200,000 in ads in Illinois’s judi­cial primary, accord­ing to the Center for Public Integ­rity.  And in North Caro­lina – one of the few states to provide public finan­cing for judi­cial elec­tions – a super PAC was recently formed in support of conser­vat­ive incum­bent Justice Paul M. Newby, who is also accept­ing public finan­cing for his race.  With the Court’s 4–3 conser­vat­ive balance on the line, this race has the poten­tial to attract signi­fic­ant dollars, and usher in a new role for outside money in judi­cial campaigns. 

Spend­ing on TV Ads in 2012 Judi­cial Primar­ies

State

Total Spent

Candid­ates

Candid­ate Spent

Alabama

$1,391,530

 Tommy Bryan

 $271,440

 Charlie Grad­dick

 $412,810

 Chuck Malone

 $598,750

 Roy Moore

 $108,530

Illinois

$1,334,170

 Joy Cunning­ham

 $135,580

 Mary Jane Theis

 $1,198,590

Texas

$1,167,930

 Don Willett

 $1,167,930

West Virginia

$586,050

 Leti­tia Chafin

 $325,110

 Robin Davis

 $181,350

 Louis Palmer

 $28,790

 Jim Rowe

 $50,800

Arkan­sas

$168,410

 Raymond Abramson

 $103,980

 Jo Hart

 $64,430

Montana

$22,110

 Eliza­beth Best

 $22,110

Oregon

$3,170

 Nena Cook

 $3,170

TOTAL SPEND­ING

$4,673,370

 

 

High­lights from the Primary Season: Million Dollar Races

  • In Illinois, Justice Mary Jane Theis spent close to $1.2 million on TV advert­ise­ments in success­fully defend­ing her seat in the Demo­cratic primary, compared with about $136,000 in spend­ing by her oppon­ent Judge Joy Cunning­ham, and no TV spend­ing by her other two oppon­ents.  The pro-choice group Personal PAC also reportedly spent $200,000 in print ads attack­ing Theis’s oppon­ent Aure­lia Pucin­ski, accord­ing to the Center for Public Integ­rity.  Theis will face Judge James G. Riley, who ran unop­posed in the Repub­lican primary, in the general elec­tion.  Sitting Justice Rita Garman will also face a reten­tion elec­tion this Novem­ber.
  • In Texas, Justice Don Willett spent more than $1.1 million success­fully defend­ing his seat in a Repub­lican primary.  His oppon­ent, former Supreme Court Justice Steve Smith – who chal­lenged Justice Willett in the 2006 Repub­lican primary and narrowly lost by 1% of the vote – did not spend any money on TV advert­ise­ments.  Willett will face Liber­tarian candid­ate Robert Stuart Koelsch in the general elec­tion; he will not have a Demo­cratic chal­lenger.  In another contested primary, John Devine won the Repub­lican nod follow­ing a primary and runoff elec­tion.  Neither Devine nor his oppon­ents spent money on TV advert­ise­ments; Devine will not have a Demo­cratic chal­lenger in the general elec­tion.  In a third race, sitting Justice Nathan Hecht did not face a primary chal­lenger, but will face San Anto­nio lawyer Michele Petty in the general elec­tion.
  • In Alabama, four candid­ates spent money on judi­cial advert­ise­ments in two primary races, with expendit­ures ranging from approx­im­ately $109,000 to $599,000.  Big spend­ing did not neces­sar­ily trans­late to a win, however:  In the hotly contested race for Chief Justice, former Chief Justice Roy Moore won the nomin­a­tion while being outspent by his two oppon­ents, incum­bent Charles Malone and former Attor­ney General Charles Grad­dick.  Moore gained notori­ety when he was removed from office in 2003 after refus­ing to follow a federal judge’s order to remove a Ten Command­ments monu­ment from the state judi­cial build­ing.  In the other contested primary, Judge Tommy Bryan spent $271,440 in defeat­ing his oppon­ent Judge Debra Jones, who did not run any TV advert­ise­ments.  Bryan will run unop­posed in the general elec­tion.  Three other Justices are also seek­ing reelec­tion unop­posed in both the primary and general elec­tions; none of these candid­ates spent money on judi­cial advert­ise­ments.

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 original press release erro­neously stated that no Demo­crats are chal­len­ging two Repub­lican incum­bents. The release has been updated from its original version.