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How Citizens United Threatens Judicial Independence

Unlimited and secretive spending by special interest groups is especially out-of-place in elections for state judges, who are supposed to be impartial.

September 29, 2020
Hisham Ibrahim/Getty

The Supreme Court’s 2010 decision in Citizens United has trans­formed elec­tions, further tilt­ing polit­ical influ­ence toward wealthy donors, corpor­a­tions, and special interest groups. But while the case has received atten­tion for its impact on congres­sional and state legis­lat­ive races, it has also signi­fic­antly increased spend­ing in judi­cial elec­tions — a devel­op­ment that threatens the integ­rity and inde­pend­ence of state courts.

Thirty-eight states elect their state supreme court justices, and Citizens United has led to increased outside spend­ing on these judi­cial elec­tions from special interest groups. These dynam­ics have implic­ated judges in signi­fic­ant conflicts of interest. And the stakes are high: state courts hear 95 percent of all cases filed in the United States, includ­ing high-profile cases that cover crit­ical civil rights issues ranging from gerry­man­der­ing to repro­duct­ive justice to the death penalty.

Special interest groups are leav­ing their mark on judi­cial elec­tions

In the decade since Citizens United was issued, there has been a surge in special interest spend­ing. Increas­ingly, that spend­ing comes in the form of dark money — or elec­tion-related spend­ing from secret sources — often from special interest groups that are not required to disclose their donors. The rise of dark money, partic­u­larly in federal elec­tions, has garnered a consid­er­able amount of cover­age in the national media.

Dark money has also played a signi­fic­ant role in the over­all increase of elec­tion spend­ing in judi­cial elec­tions at the state level. Since 2000, judi­cial races have been flooded with more than $500 million in elec­tion spend­ing. During the 2017 to 2018 state supreme court elec­tion cycle, 27 percent of all spend­ing came from came from special interest groups, accord­ing to a Bren­nan Center analysis. Notably, 8 of the 10 biggest spend­ers during that elec­tion cycle were nontrans­par­ent groups.

As spend­ing on state judi­cial elec­tions has increased, so has the ratio of negat­ive campaign ads that involve criti­cism of oppos­ing candid­ates. During the 2015–2016 elec­tion cycle, 35 percent of all advert­ising spots connec­ted to state supreme court elec­tions were negat­ive, up from 21 percent in the previ­ous cycle. Outside groups paid for 73 percent of the negat­ive spots that aired during the 2015–2016 cycle, and more than half of the negat­ive ads attacked judges for specific rulings on the bench, often in ways that could poten­tially mislead voters. 

Big money jeop­ard­izes judi­cial integ­rity

Experts worry that the contin­ued growth in judi­cial elec­tion spend­ing could further politi­cize state supreme courts, threat­en­ing the inde­pend­ence of the branch of govern­ment that is inten­ded to render justice in an impar­tial manner.

“It’s crucial for public to have confid­ence that the courts are inde­pend­ent, and that they are not just a third polit­ical branch of govern­ment,” said Douglas Keith, coun­sel in the Bren­nan Center’s Demo­cracy Program. “In our system of demo­cracy, judges have the unique role of settling disputes without consid­er­ing polit­ics to the extent that the other branches do.”

There is also evid­ence that judi­cial elec­tion spend­ing can influ­ence the outcomes of actual cases. Judges may feel pres­sure to rule in favor of wealthy donors or polit­ical parties that they rely on for support from. Addi­tion­ally, a 2015 Bren­nan Center study found that judges tend to become more punit­ive toward crim­inal defend­ants during elec­tion years. This pattern may be exacer­bated by ads from dark money groups that portray candid­ates as “tough on crime.” 

These trends are espe­cially troub­ling because the federal courts in recent years have become increas­ingly hostile territ­ory for civil rights cases, which has raised the stakes of state supreme court decisions. As an example, in 2019, the Supreme Court ruled that federal courts have no role to play in even the most extreme cases of partisan gerry­man­der­ing — a decision that has shif­ted the redis­trict­ing battle­field to the states. State courts in both Pennsylvania and North Caro­lina, for instance, have both struck down polit­ical maps as uncon­sti­tu­tional under their state consti­tu­tions. 

“Thanks to inac­tion in the federal courts, we’re already seeing key cases coming out of state supreme courts that will change our demo­cracy,” said Keith. “As the stakes increase in state supreme court decisions, there will like­wise be increased atten­tion on judi­cial races on both ends of the polit­ical spec­trum. And there’s no reason to think that the temper­at­ure is going to decrease on these elec­tions anytime soon.”

Paths to reform­ing judi­cial elec­tions

As judi­cial elec­tion spend­ing contin­ues to increase, crit­ics argue that state supreme court judges should not be elec­ted in the first place and that there are better processes for judi­cial selec­tion. In the 2018 report Choos­ing State Judges: A Plan for Reform, the Bren­nan Center’s Alicia Bannon high­lights one poten­tial way to replace judi­cial elec­tions: through a publicly account­able appoint­ment system, in which the governor selects a judi­cial appointee from a vetted short list provided by an inde­pend­ent nomin­at­ing commis­sion.

The report offers addi­tional policy solu­tions that would help combat the influ­ence of increased judi­cial elec­tion spend­ing. For example, state legis­latures should pass better disclos­ure laws that require more trans­par­ency in elec­tion spend­ing, espe­cially in judi­cial elec­tions. State courts should set stronger ethics and recusal rules to help prevent conflicts of interest in the courtroom — and if they fail to do so, state lawmakers should take the lead on legis­la­tion. And states should consider limit­ing judges to one-and-done terms, partic­u­larly because incum­bents seek­ing elec­tion are likely to face elec­tion pres­sures that could influ­ence their decision-making on the bench.

Finally, states should consider adopt­ing public finan­cing systems for judi­cial elec­tions that match small-donor dona­tions with public funds. Such systems amplify the voices of every­day citizens and provide a way for candid­ates to rely less heav­ily on contri­bu­tions from wealthy megadonors. Depend­ing on the state, public finan­cing programs can be enacted through the legis­lat­ive process or through a public refer­en­dum. New Mexico’s public finan­cing system, for example, allows candid­ates in statewide judi­cial races to parti­cip­ate.

Citizens United has accel­er­ated troub­ling patterns in state judi­cial elec­tions that have politi­cized a func­tion of govern­ment that is crit­ical to Amer­ican demo­cracy. By prior­it­iz­ing elec­tion reform, states can play a role in help­ing start to reverse the trend.