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Outside Groups Set TV Spending Record in Judicial Races As Obama Endorses NC Judge

Outside groups have already spent a record $14 million on TV ads in the 2015–16 state supreme court election cycle, and outside spending is expected to continue to surge in the final weeks before Election Day.

October 26, 2016

As Pres­id­ent Obama took the extraordin­ary step of endors­ing a candid­ate for a state supreme court race this week, spend­ing by outside groups on tele­vi­sion ads in all such contests hit a record high nation­wide, accord­ing to a new analysis by the Bren­nan Center for Justice. These devel­op­ments under­score the grow­ing import­ance of state courts in national polit­ics and the expand­ing influ­ence of secret money in target­ing judges unfa­vor­able to corpor­ate agen­das and other special interests. The millions of dollars spent, much of it without mean­ing­ful disclos­ure or account­ab­il­ity, raise seri­ous ques­tions of conflicts of interest and pose a troub­ling threat to core values of fair­ness and judi­cial integ­rity.

Outside groups have already spent a record $14 million on TV ads in the 2015–16 state supreme court elec­tion cycle, includ­ing nearly $3.9 million this fall, accord­ing to an analysis of tele­vi­sion ad contracts posted on the FCC website, state disclos­ures, and data from Kantar Media/CMAG. The prior record for outside groups was $13.5 million in 2011–12, accord­ing to track­ing by the Bren­nan Center for Justice. (All figures in this analysis are in 2016 dollars.) State polit­ical parties, in contrast, have been relat­ively minor play­ers this fall, with approx­im­ately $188,000 worth of tele­vi­sion ad buys in Michigan and Wash­ing­ton (all from the state Repub­lican Party). Recent exper­i­ence suggests outside spend­ing will continue to surge in the final weeks before Elec­tion Day.

“When outside groups pour money into judi­cial races, it puts our whole system at risk. Our demo­cracy relies on judges to decide cases based on their under­stand­ing of the law and the facts in front of them, and not out of fears about their next elec­tion,” said Alicia Bannon, Senior Coun­sel in the Bren­nan Center’s Demo­cracy Program.

The Repub­lican State Lead­er­ship Commit­tee, a corpor­ate-funded group whose mission is to elect Repub­lic­ans in down-ballot races, contin­ues to be the largest outside spender in supreme court races this cycle. It has spent more than $620,000 on TV this fall in Ohio, in addi­tion to contrib­ut­ing $225,000 to the organ­iz­a­tion Stop­SetEm­FreeS­ande­fur.com in Montana and donat­ing $43,000 in-kind for polling and research. To date, the RSLC has spent nearly $4.1 million on six supreme court races during the 2015–16 cycle (count­ing direct spend­ing as well contri­bu­tions to other groups), includ­ing in off-cycle races in Pennsylvania, Arkan­sas, West Virginia, and Wiscon­sin. Another major spender is the Center for Indi­vidual Free­dom, a Virginia-based group whose mission is to “protect and defend indi­vidual freedoms and indi­vidual rights,” which has spent nearly $768,000 in TV ad buys in Louisi­ana and Missis­sippi. Like­wise, North Caro­lina Famil­ies First, a progress­ive-lean­ing PAC that has been a regu­lar player in state legis­lat­ive races, has purchased ad contracts worth $670,000 in the North Caro­lina Supreme Court race.

All three groups bene­fit from secret money – a trend that has prolif­er­ated in supreme court elec­tions this year. Only three of the thir­teen groups that have spent on tele­vi­sion this fall have fully trans­par­ent donors: the remain­ing nine include so-called “social welfare” organ­iz­a­tions and busi­ness leagues that do not disclose their donors, as well as PACs that list social welfare organ­iz­a­tions or other PACs as contrib­ut­ors — making it diffi­cult (or some­times even impossible) to discern the under­ly­ing interests.

Total TV spend­ing in this cycle’s state supreme court races now nears $29.9 million, just short of the 2011–12 record of $35.5 million with roughly two weeks to go before the elec­tion. (In total, there are 80 supreme court seats up for elec­tion in 2015–16, compared with 75 seats in 2011–12.) States attract­ing the most TV spend­ing this fall include: Ohio ($1,514,000.), Louisi­ana ($1,453,000), North Caro­lina ($1,414,000), Michigan ($976,000), Missis­sippi ($751,000), Kansas ($403,000), and Wash­ing­ton ($146,000), which has also seen $115,000 spent on radio advert­ise­ments.

The Bren­nan Center will continue to monitor and analyze judi­cial elec­tion trends this fall, post­ing data and regu­lar updates on its state supreme court elec­tions page.

States in Focus:

North Caro­lina Attracts Spend­ing Surge and Pres­id­en­tial Endorse­ment

With the poten­tial to shift the compos­i­tion of the North Caro­lina Supreme Court from Repub­lican to Demo­cratic, the race between incum­bent Justice Robert Edmunds and chal­lenger state super­ior court judge Michael Morgan has attrac­ted a late surge of money and atten­tion. This week, Pres­id­ent Obama endorsed Morgan, stat­ing that he “under­stands what ordin­ary famil­ies are going through and he has a track record of admin­is­ter­ing fair and impar­tial justice.”

Last week North Caro­lina Famil­ies First, which has made TV ad purchases worth $670,000, began airing an attack ad against Edmunds, target­ing him for writ­ing the state court decision uphold­ing the state’s congres­sional map in the face of charges that it was an illegal racial gerry­mander — a ruling that fell along party lines and that high­lights the high stakes for partisan control of the North Caro­lina Supreme Court. A subsequent federal lawsuit struck down the map, and the case is now before the U.S. Supreme Court. The ad describes Edmunds as “support­ing his party’s discrim­in­a­tion” in his ruling. On the other side, the North Caro­lina Cham­ber of Commerce has spent $504,000 on TV ads in support of Edmunds in the general elec­tion. Neither group is fully trans­par­ent: the NC Cham­ber does not disclose its donors, while in 2014, NC Famil­ies First was prin­cip­ally funded by social welfare organ­iz­a­tions and other PACs.

Louisi­ana Breaks State Record for Outside Spend­ing as Oil Interests and Charter School Support­ers Target Race

A contest for an open seat on the Louisi­ana Supreme Court between state court of appeals judge Jimmy Genov­ese and state district court judge Marilyn Castle has broken the state’s record for TV spend­ing by outside groups, with more than $785,000 spent on tele­vi­sion ad buys by three groups: the Center for Indi­vidual Free­dom, Restore our Coast, and Citizens for Judi­cial Excel­lence. (The prior record was $584,000 in 2012.) Together with candid­ate spend­ing, the race has attrac­ted more than $1.4 million in TV dollars. The Center for Indi­vidual Free­dom, which is support­ing Castle, is the largest TV spender in the race (includ­ing candid­ates), having spent $496,000 on tele­vi­sion ads attack­ing Genov­ese for decisions “sid[ing]” with “sexual pred­at­ors” and prais­ing Castle for “lock­ing up child sex offend­ers for good.” The group does not disclose its donors, but the Center for Respons­ive Polit­ics has docu­mented past support from Cross­roads GPS and Amer­ican Action Network.

The lack of disclos­ure from the race’s biggest spender leaves unanswered ques­tions about why the race has attrac­ted so much atten­tion, but other fund­ing sources suggest one motiv­a­tion is the preval­ence of so-called “legacy lawsuits,” collect­ively worth billions of dollars, in which oil and gas compan­ies have been sued for fund­ing to restore envir­on­ment­ally damaged prop­er­ties and repair coastal degrad­a­tion. The oil and gas industry is among Castle’s major donors. Another poten­tial interest is charter schools. Citizens for Judi­cial Excel­lence, which has spent $78,000 on tele­vi­sion ads attack­ing Genov­ese, is prin­cip­ally funded by local busi­ness­man Lane Grigsby, a charter school supporter who has previ­ously spent money on school board races and contrib­uted to a pro-charter school group, Stand for Chil­dren. There is currently a lawsuit chal­len­ging public fund­ing of charter schools in Louisi­ana in state court, suggest­ing one possible reason for Grigs­by’s interest. 

New Ads Target Wash­ing­ton Justices as “Play­ing Polit­ics” and Enabling Child Pred­at­ors

Recent court decisions, includ­ing rulings strik­ing down the public fund­ing of charter schools and uphold­ing a $15 minimum wage, have motiv­ated efforts to unseat three sitting justices on the Wash­ing­ton Supreme Court, Mary Yu, Barbara Madsen, and Charles Wiggins.

Last week Judi­cial Integ­rity WA disclosed $350,000 in tele­vi­sion spend­ing oppos­ing Wiggins, with an attack ad focus­ing on his decision in a child porno­graphy case that law enforce­ment offi­cials did not give proper warn­ings before enter­ing a house without a warrant. The ad describes Wiggins as “us[ing] a tech­nic­al­ity so [a child porno­graphy suspect] could avoid prosec­u­tion,” conclud­ing that “our chil­dren are preyed upon, and Wiggins enabled the pred­at­ors.” The group also ran radio ads support­ing Greg Zempel, who is chal­len­ging Madsen, in the primar­ies. The group’s major funders include billion­aire investor Ken Fisher. Rodney Tom, former major­ity leader of the state senate, is the group’s campaign manager and treas­urer. Tom reportedly described his interest in oppos­ing the justices as coming from “recent court decisions strik­ing down charter schools and [a law requir­ing a two-thirds major­ity to raise taxes,] and uphold­ing a $15 per hour minimum wage for Sea-Tac Airport work­ers.” The Wash­ing­ton Repub­lican Party also recently began airing tele­vi­sion ads criti­ciz­ing the state supreme court as “unres­trained in its author­ity” and “play­ing polit­ics” to “advance liberal causes,” spend­ing $109,460 accord­ing to state disclos­ures.

Meth­od­o­logy

Data on TV and radio ad buys for the Novem­ber general elec­tion is based on an analysis of contracts posted on the FCC’s website. Spend­ing totals are current as of 6 AM ET on Octo­ber 26, 2016. Tele­vi­sion spend­ing data for earlier races in 2015–16 cycle came from estim­ates from Kantar Media/CMAG, with the excep­tion of West Virginia, where we relied on state disclos­ures. Inform­a­tion about donors was taken from online state disclos­ure data­bases and news sources, as reflec­ted in the hyper­links. All spend­ing figures in this analysis are in 2016 dollars.