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.
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.