Outside Spending Floods Judicial Elections at Record Levels, Report Finds

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.