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Record Outside Spending on Judicial Races Takes Legal Issues From Docket to Ballot

Contributions from charter school enthusiasts, like billionaire philanthropist Bill Gates, and anger over racial gerrymandering are helping drive spending by outside groups in state supreme court elections to record levels.

November 3, 2016

Contri­bu­tions from charter school enthu­si­asts, like billion­aire phil­an­throp­ist Bill Gates, and anger over racial gerry­man­der­ing are help­ing drive spend­ing by outside groups in state supreme court elec­tions to record levels, a new analysis of tele­vi­sion ad buys by the Bren­nan Center for Justice shows.

Fueled by the Citizens United decision, this outside spend­ing, much of it secret and unac­count­able, raises troub­ling ques­tions about whether crucial judi­cial decisions on issues such as voting rights and equal­ity in educa­tion are on the docket, on the ballot, or up for sale.

Outside special interest groups — which do not face contri­bu­tion limits, and many of which do not disclose their donors — have already surpassed prior records for TV spend­ing in state supreme court elec­tions, with more than $1.5 million worth of TV ad buys over the past week alone. Total outside group spend­ing for the 2015–16 elec­tion cycle is an estim­ated $15.6 million, outstrip­ping the previ­ous record set in 2011–12 by more than $2 million with several days left until Elec­tion Day.

Outside groups are also a higher propor­tion of total spend­ing than ever before: Forty-eight percent of all TV spend­ing has come from such groups this cycle, compared with the prior record of 38 percent in 2011–12. Polit­ical parties, by contrast, have largely vanished from supreme court races this cycle, with­er­ing to only 2 percent of total tele­vi­sion spend­ing, as compared with 24 percent in 2011–12, with the balance coming from the campaigns of judi­cial candid­ates them­selves.

“What we’re seeing is an arms race fostered by Citizens United that allows interest groups to try and shape courts in their image by target­ing indi­vidual judges,” said Alicia Bannon, senior coun­sel in the Bren­nan Center’s Demo­cracy Program. “This record spend­ing under­mines the integ­rity of our judi­cial system and raises crucial ques­tions about who the courts serve.”

Only two of the 14 groups that have spent money on tele­vi­sion ads this fall have fully trans­par­ent donors: the remain­ing 12 include so-called “social welfare” organ­iz­a­tions that do not disclose their donors, as well as PACs that list social welfare organ­iz­a­tions or other PACs as among their contrib­ut­ors. This makes it diffi­cult (or some­times impossible) to discern many of the under­ly­ing interests seek­ing to influ­ence judi­cial races, and poten­tially hides conflicts of interest in cases involving major spend­ers.

Despite this limited trans­par­ency, an analysis of state disclos­ures and TV ad contracts reveals several key interests that have turned their atten­tion, and wallets, to state judi­cial races.

Charter School Ruling Draws Bill Gates and Other Billion­aires to Wash­ing­ton Race

In Wash­ing­ton, Bill Gates has contrib­uted $200,000 to a group, Citizens for Work­ing Courts Enter­prise WA, that is support­ing muni­cipal court judge Dave Larson in his race against incum­bent Justice Charlie Wiggins. Wash­ing­ton has three contested supreme court seats this fall. Along with Gates, other indi­vidu­als with Microsoft ties are also fund­ing Citizens for Work­ing Courts, includ­ing former Microsoft CEO Steve Ballmer (and his wife Connie Ballmer), and Microsoft’s current pres­id­ent, Brad Smith. Vulcan Inc., which was foun­ded by Microsoft co-founder Paul Allen, has also contrib­uted $300,000 to the group. Although they have not spoken publicly about their interest in Wash­ing­ton’s judi­cial race, Gates, Vulcan Inc., and Connie Ballmer all previ­ously backed a ballot meas­ure estab­lish­ing charter schools in the state, which the Court struck down in 2015 because it gave control of charter schools to appoin­ted, rather than elec­ted, boards. Wiggins voted with the major­ity.

In all, groups and parties have spent $1,381,000 in inde­pend­ent expendit­ures focused on remov­ing one or all of the sitting justices, includ­ing $539,800 by Citizens for Work­ing Courts, while the three justices have collect­ively bene­fit­ted from $330,000 in outside spend­ing. The candid­ates (chal­lengers and incum­bents) have spent $816,000 in total during the primary and general elec­tion.

North Caro­lina Sees Spend­ing Arms Race in Elec­tion that Could Give Demo­crats a Court Major­ity

With an elec­tion that has the poten­tial to shift the North Caro­lina Supreme Court’s major­ity from Repub­lican to Demo­cratic, outside groups on both sides are pour­ing money into the race between incum­bent Justice Robert Edmunds and his chal­lenger, State Super­ior Court Judge Michael Morgan. North Caro­lina repres­ents a break with previ­ous trends, in which national atten­tion on state judi­cial races has been concen­trated almost exclus­ively on the right. Redis­trict­ing is a key issue, includ­ing Edmunds’ role in writ­ing a 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 has been the subject of negat­ive ads. A subsequent federal lawsuit struck down the map, and the case is now before the U.S. Supreme Court. (The Bren­nan Center has filed an amicus brief before the U.S. Supreme Court but was not involved in the state lawsuit.)

Last 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.” The group North Caro­lina Famil­ies First has disclosed spend­ing close to $1 million on ads oppos­ing Edmunds. Color of Change PAC, the inde­pend­ent expendit­ure arm of the racial justice organ­iz­a­tion Color of Change, has disclosed $210,170 in expendit­ures in support of Morgan. On the pro-Edmunds side, major play­ers include the North Caro­lina Cham­ber of Commerce, which recently received $1 million from the U.S. Cham­ber of Commer­ce’s Insti­tute for Legal Reform for pro-Edmunds ads, and Fair Judges, which received dona­tions total­ing $881,000 between Oct. 17 and Oct. 28, includ­ing $300,000 from the Repub­lican State Lead­er­ship Commit­tee, and $100,000 from the North Caro­lina Citizens for Free­dom in Educa­tion, a group that reportedly supports school vouch­ers and charter schools. In total, North Caro­lina has seen nearly $2.1 million in TV and radio ad buys for the general elec­tion, includ­ing $1.8 million from outside groups, accord­ing to FCC files. An analysis of state disclos­ures by Facing South last week docu­mented close to $2.2 million in total outside expendit­ures.

New Ads Air in Kansas as PAC with Ties to Secret­ary of State Kobach Joins Anti-Reten­tion Campaign

New ads began airing in Kansas this week oppos­ing the reten­tion of four supreme court justices, in a polit­ic­ally charged elec­tion in which the state Repub­lican Party and several conser­vat­ive groups have called for the ouster of the justices, citing decisions they have made on issues such as the death penalty, abor­tion, and educa­tion fund­ing, while four former governors (Repub­lic­ans and Demo­crats) have campaigned in support of the justices. Kansans for Conser­vat­ive Values began airing radio ads oppos­ing the justices’ reten­tion this week; the group was star­ted earlier this year by current and former staffers of Kansas Secret­ary of State Kris Kobach. Another anti-reten­tion group, Kansans for Justice, also put out a new ad this week, high­light­ing a 2014 decision in which the Court vacated the death sentences of broth­ers convicted of a brutal set of murders and ordered a new senten­cing hear­ing. The ad features family members of the victims, stat­ing that their campaign against the justices “has noth­ing to do with any polit­ical parties or politi­cians.” Kansans for Justice has spent an estim­ated $382,000 this cycle on tele­vi­sion ads. A pro-reten­tion group, Kansans for Fair Courts, has spent an estim­ated $271,000.

Repub­lican State Lead­er­ship Commit­tee Enters New States While Facing Disclos­ure Viol­a­tion in Montana

The Repub­lican State Lead­er­ship Commit­tee, a corpor­ate-funded group whose mission is to elect Repub­lic­ans in down-ballot races, has put money into two new state supreme court races. The RSLC contrib­uted $50,000 to Citizens for Judi­cial Excel­lence in Louisi­ana, a group oppos­ing state court of appeals judge Jimmy Genov­ese, who is vying for an open seat on the state supreme court, and $300,000 to Fair Judges, a group support­ing incum­bent North Caro­lina Supreme Court Justice Edmunds. The RSLC contin­ues to be the largest outside spender in the 2015–16 elec­tion cycle, having spent more than $4.4 million in eight states (count­ing direct spend­ing as well as contri­bu­tions to other groups): Louisi­ana, North Caro­lina, Montana, Ohio, Arkan­sas, West Virginia, Wiscon­sin, and Pennsylvania.

At the same time, this week Montana’s Commis­sion of Polit­ical Prac­tices ruled that the RSLC viol­ated state campaign finance disclos­ure laws by fail­ing to prop­erly report and disclose campaign expense and contri­bu­tion inform­a­tion in connec­tion with a $268,000 expendit­ure to a state group, Stop­SetEm­FreeS­ande­fur.com, in the Montana supreme court elec­tion. The ruling noted that “Disclos­ures in Montana’s Supreme Court elec­tions have become of partic­u­lar interest, given the large amounts of money spent for or against candid­ates in those elec­tions during the 2014 and 2016 elec­tion cycles.”

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Total TV spend­ing in this cycle’s state supreme court races from candid­ates, parties, and outside groups now nears $32.7 million, just short of the 2011–12 record of $35.5 million. States attract­ing the most TV spend­ing this fall, as docu­mented by contracts posted in the FCC website, include: North Caro­lina ($2,038,000), Ohio ($1,897,000.), Louisi­ana ($1,762,000), Michigan ($1,531,000), Missis­sippi ($1,018,000), Kansas ($653,000), and Wash­ing­ton ($475,000), which has also seen $125,000 spent on radio advert­ise­ments.

The Bren­nan Center will continue to monitor and analyze judi­cial elec­tion trends, post­ing data and regu­lar updates on its state supreme court elec­tions page. Addi­tional inform­a­tion on candid­ate fundrais­ing can also be found here.

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 12pm ET on Novem­ber 2, 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.