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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

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.