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Press Release

Outside Money Continues to Flow Into State Supreme Court Races

Brennan Center’s latest spending analysis shows near record TV ad expenditures by outside groups with money trails that are nearly impossible to trace

October 30, 2018

MEDIA CONTACT: Stephen Fee, stephen.fee@nyu.edu, 646 925 8720

Outside groups continue to pour money into state supreme court campaigns, with tele­vi­sion advert­ising spend­ing so far total­ing $5 million this elec­tion season. The latest analysis from the Bren­nan Center for Justice at NYU Law shows that outside groups account for a near-record 54 percent of all TV spend­ing on high court races for Octo­ber.

“The surge of outside spend­ing into state supreme court races contin­ues to seri­ously threaten the integ­rity of our nation’s courts,” said Douglas Keith, coun­sel at the Bren­nan Center and coordin­ator of the ongo­ing Buying Time project that tracks state judi­cial elec­tion spend­ing. “As we just laid out in a report earlier this year, outside and dark money spend­ing imperil the abil­ity of judges to be and appear fair and impar­tial, and the pres­sures of elec­tions are contort­ing our justice system to favor the wealthy and the power­ful.”

Data provided to the Bren­nan Center by Kantar Media/CMAG show that the biggest outside spender to date is the Repub­lican State Lead­er­ship Commit­tee’s Judi­cial Fair­ness Initi­at­ive, a regu­lar player in state court races nation­wide. Accord­ing to state filings and public state­ments, already the group has spent at least $3.2 million this year to support conser­vat­ive state supreme court candid­ates in Arkan­sas and West Virginia, well above the group’s 2016 spend­ing across four states. The second biggest spender so far this cycle is North Caro­lina Famil­ies First, which has spent $1.2 million support­ing Demo­cratic candid­ate Anita Earls.

“As in 2016, what’s so distrib­ut­ing is that voters will likely never know who is making these multi-million-dollar ad buys,” said the Bren­nan Center’s Keith. “The top two groups this season have repor­ted some of their donors, but the money trail is often obscured by dona­tions from parent organ­iz­a­tions, corpor­ate interests, and other outside groups that aren’t required to report their indi­vidual donors. It’s nearly impossible to decipher who might be trying to skew state courts in their favor.”

In addi­tion to TV spend­ing, 2018 has seen outside groups spend­ing on digital ads. Amer­ic­ans for Prosper­ity, a group affil­i­ated with the conser­vat­ive Koch broth­ers, is running ads support­ing incum­bent Michigan supreme court judge Kurtis Wilder, while Ohioans for a Health Economy, a group with close ties to the state’s Cham­ber of Commerce, is running digital ads support­ing two state supreme court candid­ates.

The Bren­nan Center also finds candid­ates them­selves are taking to the airwaves this fall in North Caro­lina, Nevada, West Virginia, Michigan, Arkan­sas, Alabama, and New Mexico (click here to read our state-by-state break­down). In a twist this year, some ads from judges take the tone of partisan polit­ical spots, invok­ing Pres­id­ent Trump or other national polit­ical figures and themes to make the case to voters. One ad from a sitting supreme court justice in North Caro­lina goes as far as implor­ing voters to “stop the liber­als.”

“At a moment of polit­ical intens­ity, this kind of spend­ing and politi­ciz­a­tion are hurt­ing our nation’s courts,” said Bren­nan’s Keith. “That’s why we’re advoc­at­ing for the abol­i­tion of state supreme court elec­tions and favor inde­pend­ent, bipar­tisan commis­sions to vet judges for appoint­ment to a single lengthy term. It’s one way to inocu­late our state courts from undue influ­ence and the scourge of dark, untrace­able money.”