The Brennan Center for Justice at NYU Law has released a new analysis of campaign spending nationwide in the 2017-2018 state supreme court elections, finding that $39.7 million went into races for 48 judgeships in 21 states.
The report, produced with data collected by the National Institute on Money in Politics, shows that that 27% of the $39.7 million came from special interest groups. In Arkansas and West Virginia, those groups accounted at least two-thirds of every dollar spent on state supreme court campaigns. These and other figures in the report correspond to the trends in spending in judicial races since the early 2000s, including a surge in interest group spending after the Supreme Court’s 2010 Citizens United ruling.
“Massive cash infusions from donors and special interest groups have become regular features of state supreme court elections, and this money often comes from people with a financial stake in the courts’ decisions,” said Douglas Keith, lead author of The Politics of Judicial Elections, 2017-18: How Dark Money, Interest Groups, and Big Donors Shape State High Courts and counsel in the Brennan Center’s Democracy program. “The ever-growing need for campaign funding tests judges’ impartiality and puts justice at risk.”
The report’s authors determined the top ten special interest groups in spending on state supreme court judicial elections in the 2017-2018 cycle. The Republican State Leadership Committee’s Judicial Fairness Initiative was first ($4.1 million), North Carolina Families First was second ($1.2 million), and Wisconsin Manufacturers & Commerce was third ($1.1 million). These three groups, as well as another five of the top ten, all used substantial amounts of dark and gray money, meaning that the sources of their funds are hidden from the public with varying degrees of secrecy.
“The special interest groups that hide their donors’ identities tend to spend big on attack ads, and races for judgeships are no exception,” said Keith. “We found that these groups spent $2 million in the 2017-2018 cycle on TV ads that attacked specific decisions by particular judges. That pressure can make the candidates targeted by the ads more dependent on large donations in order to pay for their own ads, and research suggests this pressure can impact judicial decision-making. None of this is conducive to fair, unbiased jurisprudence.”
The Politics of Judicial Elections, 2017-18 includes case studies that show the impact of high campaign spending on judicial elections and judges’ decisions. For example:
- In 2018, the Ohio insurance industry gave more than $60,000 to a state supreme court justice who was simultaneously running for reelection and deciding an insurance liability case with broad ramifications.
- A Michigan justice running for election was threatened in 2018 with losing campaign funding if she decided in favor of keeping a redistricting ballot initiative on the ballot. After she ruled in favor of the initiative, her own political party and its allies cut financial support and removed her from campaign materials.
- In Arkansas in 2018, special interest groups ran attack ads alleging that a state supreme court judicial candidate had heard cases involving people who had donated money to her campaign or given her gifts. A group led by retired Arkansas judges determined the claims were false, and a court blocked television stations from airing the ads.
“We should end state supreme court elections as we know them,” Keith said. “Today’s judicial elections insert money and politics into judges’ decision-making with corrosive results. We can reduce those harms. We can replace elections outright with publicly accountable appointment systems. Or we can reform judicial elections by strengthening ethics rules around hearing cases that involve campaign supporters and implementing public financing for judicial campaigns.”
Thirty-eight states use elections to pick their supreme court justices. These judges sit at the top of state judicial systems that hear 95 percent of all cases filed in the United States, and they decide more than 10,000 cases each year.
With the publication of The Politics of Judicial Elections, 2017-18, the Brennan Center now has 20 years-worth of data in its Politics of Judicial Elections series, documenting more than a half-billion dollars in spending in state supreme court elections.
Along with Douglas Keith, Patrick Berry, Fellow and Counsel in the Brennan Center’s Democracy Program, and Eric Velasco are coauthors of the report.
Click here to read the full report, The Politics of Judicial Elections, 2017-18.
Visit Strengthening Our Courts for more Brennan Center research on judicial reform.
The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize – and when necessary, defend – our country's systems of democracy and justice.