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Outside Spending Floods Judicial Elections at Record Levels, Report Finds

In our latest analysis of 2011–12 state Supreme Court elections, outside groups spent at record high levels making it the costliest for TV spending in judicial election history and posing grave new threats to fair and impartial justice in America.

October 24, 2013

Contact: Seth Hoy at (646) 292–8369 or seth.hoy@nyu.edu or Laurie Kinney at (202) 588–9454 or lkin­ney@justiceats­take.org

NEW YORK, NY – Special-interest groups and polit­ical parties spent an unpre­ced­en­ted $24.1 million on tele­vi­sion ads and other elec­tion mater­i­als in state court races in 2011–2012, accord­ing to a new report by the Bren­nan Center for Justice at NYU School of Law, Justice at Stake, and the National Insti­tute on Money in State Polit­ics.

The report, The New Polit­ics of Judi­cial Elec­tions 2011–12: How New Waves of Special Interest Spend­ing Raised the Stakes for Fair Courts, provides a compre­hens­ive look at 2011–2012 state Supreme Court elec­tions. In the first full elec­tion cycle since Citizens United, an explo­sion of inde­pend­ent spend­ing helped fuel the cost­li­est elec­tion cycle for TV spend­ing in judi­cial elec­tion history and posed grave new threats to fair and impar­tial justice in Amer­ica.

Among the report’s key find­ings:

  • Non-candid­ate groups (includ­ing polit­ical parties) pumped in 43 percent of all funds spent on state high court elec­tions ($24.1 million out of $56.4 million in 2011–12), compared to 22 percent ($12.8 million) in the last pres­id­en­tial elec­tion cycle. Super PACs and other outside groups funneled big spend­ing into some state judi­cial elec­tions for the first time.
     
  • Thirty-five percent of all funds spent on state high court races, or $19.6 million, came from just 10 deep-pock­eted special interest groups and polit­ical parties, compared to $12.3 million, or 21 percent, coming from the top 10 “super spend­ers” in 2007–08.
     
  • A record $33.7 million was spent on Supreme Court campaign TV ads, far exceed­ing the previ­ous record of $26.6 million in 2007–08. Negat­ive TV ads aired in at least 10 states.
     
  • National polit­ics invaded judi­cial races in 2011–12. In Iowa, TV ads refer­enced marriage equal­ity; in Flor­ida, the federal Afford­able Care Act; and in Wiscon­sin, collect­ive bargain­ing rights.

Surging inde­pend­ent spend­ing means less trans­par­ency as to who is seek­ing to influ­ence court outcomes, leads to nasty and mislead­ing attack ads, and contrib­utes to a percep­tion that justice is for sale.

“Special-interest spend­ing in judi­cial elec­tions has turned into an arms race,” said Alicia Bannon, Coun­sel at the Bren­nan Center for Justice and lead author of the report. “The Amer­ican people need to know that judges are decid­ing cases based on the law, not on who spent the most money to support their campaign.”

“Our courts are supposed to be a safe place for impar­tial justice, but campaign cash and polit­ical pres­sure are threat­en­ing to tip the scales,” said Bert Branden­burg, exec­ut­ive director of Justice at Stake. “If Amer­ic­ans start think­ing of judges as politi­cians in robes, our demo­cracy is in trouble.”

The report also found fierce legis­lat­ive attacks on merit-based systems for judge selec­tion, includ­ing bruis­ing anti-reten­tion campaigns in Flor­ida and Iowa, two states that use merit selec­tion to appoint judges. Flor­ida, a national polit­ical bell­wether state, exper­i­enced record spend­ing by all sides when three state Supreme Court justices stood for reten­tion. On Elec­tion Day 2012, however, voters retained the three Flor­ida justices and a chal­lenged justice in Iowa. Voters also rejec­ted ballot meas­ures in three states to give politi­cians more power over the courts.

Look­ing ahead, the report warns of further legis­lat­ive attacks on reforms designed to protect fair courts as well as harm­ful spend­ing trends. Accord­ing to the report, “Perhaps most disturb­ing of all, … is that while inde­pend­ent spend­ing on state court races ballooned in 2011–12, it still has room to grow. …[F]uture years may see an even greater expan­sion in inde­pend­ent spend­ing by interest groups and parties in judi­cial elec­tions.”

The New Polit­ics of Judi­cial Elec­tions reports, produced bien­ni­ally, have monitored elec­tion spend­ing and other threats to the impar­ti­al­ity of state courts since 2000.

Read the New Polit­ics report here.

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The Bren­nan Center for Justice at NYU School of Law is a nonpar­tisan law and policy insti­tute that seeks to improve our systems of demo­cracy and justice. We work to hold our polit­ical insti­tu­tions and laws account­able to the twin Amer­ican ideals of demo­cracy and equal justice for all. The Center’s work ranges from voting rights to campaign finance reform, from racial justice in crim­inal law to Consti­tu­tional protec­tion in the fight against terror­ism. A singu­lar insti­tu­tion—­part think tank, part public interest law firm, part advocacy group, part commu­nic­a­tions hub — the Bren­nan Center seeks mean­ing­ful, meas­ur­able change in the systems by which our nation is governed.

Justice at Stake is a nonpar­tisan campaign work­ing to keep Amer­ica’s courts fair and impar­tial. Justice at Stake and its 50-plus state and national part­ners work for reforms to keep polit­ics and special interests out of the courtroom— so judges can protect our Consti­tu­tion, our rights and the rule of law. Justice at Stake also educates Amer­ic­ans about the role of the courts, promotes diversity on the bench, and supports adequate resources for courts.

The National Insti­tute on Money in State Polit­ics collects, publishes, and analyzes data on campaign money in state elec­tions. The data­base dates back to the 1990 elec­tion cycle for some states and is compre­hens­ive for all 50 states since the 1999–2000 elec­tion cycle. The Insti­tute has compiled a 50-state summary of state supreme court contri­bu­tion data from 1989 through the present, as well as complete, detailed data­bases of campaign contri­bu­tions for all state high-court judi­cial races begin­ning with the 2000 elec­tions.