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How Campaign Spending in Judicial Elections Subverts Justice

A Brennan Center report analyzes the tens of millions of dollars pouring into the races for seats on state supreme courts around the country.

December 13, 2019

In the weeks lead­ing up to Elec­tion Day 2018, the Ohio Supreme Court was decid­ing a run-of-the-mill case about insur­ance liab­il­ity. There was around $6 million at stake, and given the facts, the case didn’t receive much media notice.

The insur­ance industry sure was paying atten­tion, though. Ohio elects its state supreme court justices, and while the court was consid­er­ing the case, industry exec­ut­ives and polit­ical commit­tees poured $150,000 into the campaign coffers of two judi­cial candid­ates. One of them was a sitting justice who was consid­er­ing the case while running to keep her seat.

Judges are supposed to decide cases fairly, based on the law and without think­ing about finan­cial or polit­ical pres­sure. But if you were the one suing the insur­ance company, would you feel confid­ent you were getting a fair shake?

Ohio is far from alone. Situ­ations like these, in which judges face unseemly pres­sures while decid­ing cases, are now common features in many of the 38 states that use elec­tions to pick supreme court justices.

That’s because, as a new Bren­nan Center report examin­ing state supreme court elec­tions in the 2017–18 cycle shows, high court races across the coun­try are highly politi­cized and awash with money. Much of that money comes from either people with cases in front of the court or interest groups that hide their donors’ true iden­tit­ies.

In all, $39.7 million went to elect state supreme court justices in 2017–18, most of it focused in a hand­ful of contests that illus­trate the worst of judi­cial elec­tions today. 

For example, in summer 2018, Michigan Supreme Court Justice Eliza­beth Clem­ent, a recently appoin­ted Repub­lican who was running for a full term on the court in Novem­ber, heard a case about whether a redis­trict­ing reform meas­ure could appear on the ballot. Repub­lican Party activ­ists put her on notice: kill the meas­ure or lose their support.

When Clem­ent ruled with the major­ity of the court to allow redis­trict­ing reform to go before voters, the party followed through on its threat. The party and its conser­vat­ive allies spent $800,000 to support her fellow Repub­lican who voted the other way in that case but suppor­ted Clem­ent with just $75,000. The party left her name off campaign mater­i­als, and party activ­ists advised against endors­ing her so she would “think twice about viol­at­ing our Consti­tu­tion.”

Clem­ent managed to hold her seat, but the threat is clear to justices in future cases with polit­ical implic­a­tions: toe the party line in your rulings or risk losing your job.

While some of the money in judi­cial elec­tions comes from local interests, as it did in Ohio and Michigan, much of it now also flows from national groups seek­ing to influ­ence who sits on courts across the coun­try. In Arkan­sas and West Virginia, special interest groups spent $5 million to influ­ence state supreme court elec­tions, account­ing for more than two-thirds of every dollar spent in those races.

Most of that was “dark money,” which comes from secret donors, or funneled through so many entit­ies that the public will never know who supplied those funds and why they cared so much about who sat on the states’ highest courts. An analysis of IRS filings suggests that much of the money came through the Judi­cial Crisis Network, the conser­vat­ive, DC-based dark money group, which was simul­tan­eously work­ing to seat Brett Kavanaugh on the U.S. Supreme Court.

The interest groups and donors would likely say they’re just support­ing the judges they deem most qual­i­fied. But the spend­ing puts pres­sure on judges, consciously or not, to avoid losing the support of big-money back­ers or ruling in ways that could become the focus of attack ads. And, with dark money involved, these pres­sures oper­ate without public scru­tiny of poten­tial conflicts of interest.

As much as we might hope these polit­ical and finan­cial pres­sures won’t influ­ence judges’ rulings, research suggests other­wise. Elec­tion year pres­sures appear to affect judi­cial decision-making, result­ing in better outcomes for justices’ big donors and polit­ical party support­ers — effects which disap­pear when a judge is no longer stand­ing for elec­tion.

Perhaps most troub­ling, elec­tion pres­sures also appear to result in worse outcomes for crim­inal defend­ants, possibly because of how campaign ads exploit judges’ decisions in crim­inal cases. In 2018, for example, interest groups spent $1 million in Arkan­sas and Wiscon­sin on ads mischar­ac­ter­iz­ing decisions favor­able to defend­ants, accus­ing the judges of putting their communit­ies in danger.  

All of the above puts at seri­ous risk the public’s confid­ence in the judi­ciary. Given the state of judi­cial elec­tions today, why should the public believe elec­ted judges are anything other than politi­cians in robes?

But states need not accept the status quo. There’s a lot we can do to insu­late courts from the worst effects of judi­cial elec­tions, from strength­en­ing ethics rules that prohibit judges from hear­ing cases involving major support­ers to public finan­cing of judi­cial campaigns. States can also make more funda­mental changes to how they pick judges, such as moving from elec­tions to publicly account­able appoint­ment systems.

With battle­ground states like Wiscon­sin, Ohio, Michigan, Iowa, and North Caro­lina each poised to select justices in high stakes elec­tions in 2020, we should expect more diffi­cult ques­tions about the role of polit­ics and money in judi­cial elec­tions. But in trying times for Amer­ican demo­cracy, states also have the chance to ensure courts are worth of the public’s trust.