Partisan rancor and an arms race of special interest spending in judicial elections reached new heights this cycle, as the record for TV spending by outside groups in state supreme court races was shattered, reaching nearly $20 million, according to a new analysis by the Brennan Center for Justice.
With heavyweight figures like Barack Obama and Bill Gates taking often unprecedented steps to weigh-in on judicial races with their prestige or dollars, the state judicial selection process has become more overtly partisan and politicized, threatening the essential role courts play in ensuring fair and impartial justice, accountability, and a democracy free of undue influence.
Despite the deluge of outside money, most incumbent justices hung onto their seats -- in some cases because they too were the beneficiaries of heavy spending in their favor. Ten states saw television spending in excess of $1 million, including North Carolina, where a high-profile election rife with tensions over racial gerrymandering resulted in the defeat of a Republican incumbent and the prospect of a Democratic majority on the high court, only to spill over into an apparent attempt by the Republican-dominated legislature to pack the court with new justices.
Outside groups spent an estimated $19.4 million on TV in 2015-16, 44 percent more than the prior record in 2011-12. (All figures are in 2016 dollars.) These groups also made up a record 55 percent of total TV spending, compared with 38 percent in 2011-12. The Republican State Leadership Committee was the single biggest spender, with an estimated $4 million in eight states: Louisiana, North Carolina, Montana, Ohio, Arkansas, West Virginia, Wisconsin, and Pennsylvania. Political parties have all but disappeared from judicial races, making up less than 1 percent of total spending (as compared to 24 percent in the last presidential cycle).
A large portion of this outside spending was so-called “dark” or “gray” money, providing little information as to the identities of the underlying donors. Of the 20 groups that spent on television in 2015-16, only three were fully transparent. The remaining 17 include groups that do not disclose their donors, as well as PACs that list other groups as among their contributors. This makes it difficult (and sometimes impossible) to discern who is trying to influence judicial races, and masks potential conflicts of interest in cases involving major spenders.
"What we're seeing is the legacy of Citizens United in action," said Alicia Bannon, Senior Counsel at the Brennen Center's Democracy's Program. "This unprecedented flood of spending from outside special interests and secretive donors is undermining faith in the fairness of our courts and the promise of equal justice for all."
Republican Justice Loses Seat in North Carolina as Legislature Mulls Court Packing
In North Carolina, Judge Michael Morgan defeated incumbent Justice Robert Edmunds, shifting the ideological balance of the court from a Republican to Democratic majority. This win came after an expensive race in which both candidates benefitted from substantial outside spending and Morgan received an endorsement from President Obama.
Total television spending in this race topped $2,873,000, driven by outside spending. Edmunds benefited from nearly $1.5 million dollars in TV spending by the North Carolina Chamber of Commerce and the group Fair Judges. Morgan was supported by North Carolina Families First, a group that has previously supported Democratic candidates in state legislative races, which spent nearly $1.3 million dollars on ads. The candidates themselves spent modestly on TV ads, with Edmunds spending $87,000 and Morgan spending just $16,000.
Redistricting was a major issue in the campaign. NC Families First targeted Edmunds for writing a 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. 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.) Ads characterized Edmunds’ decision to uphold the congressional districts as “supporting his party’s discrimination.”
Although Election Day has come and gone, since Morgan’s win it has been reported that the legislature may opt to add two new seats to the supreme court during an emergency session this fall, originally scheduled to deal with hurricane relief. Adding the seats would likely flip the balance back to a conservative controlled court.
Washington State Justices Hold Onto Seats Despite Spending Surge Linked to Bill Gates and Other Billionaires
In Washington, incumbent justices Barbara Madsen, Charles Wiggins, and Mary Yu all won reelection, despite a wave of outside spending to unseat them. Outside groups and parties opposing the justices (some targeting individual justices and some targeting all three collectively) disclosed spending $1.4 million to advocate against their reelection, including at least $714,000 of disclosed spending on television advertisements. The justices, however, saw only $331,000 in support and no spending on television ads by themselves or outside groups. According to contracts filed with the FCC, Justice Madsen booked nearly $19,000 in radio advertisements as did Justice Yu, who booked $59,000 in air time.
Major spenders included Bill Gates and other Microsoft executives, including former Microsoft CEO Steve Ballmer (and his wife Connie Ballmer), Microsoft’s current president, Brad Smith, and Vulcan Inc., which was founded by Microsoft co-founder Paul Allen. Together, these executives donated $532,000 to Citizens for Working Courts Enterprise Washington, which then spent $540,000 opposing Justice Wiggins and supporting his opponent David Larson, according to state disclosures. 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 Washington Supreme Court struck down in 2015, ruling that it was unconstitutional because it gave control of charter schools to appointed, rather than elected, boards. Wiggins voted with the majority.
Kansas Justices Survive Anti-Retention Campaign Focused on Controversial Death Penalty Ruling
All five justices up for retention in Kansas held onto their seats, despite a high-profile effort to unseat four of them by the state Republican Party, as well as substantial spending by an outside group that targeted them for a controversial ruling in a death penalty case. Total TV spending in the Kansas election was an estimated $1.7 million, all by outside groups either supporting or opposing retention. This is the first time the state saw TV spending in a supreme court retention election since at least 2000, the first year in which the Brennan Center has data.
Kansans for Justice spent an estimated $880,880 on advertisements opposing the justices, citing a 2014 ruling in which the Court vacated the death sentences of brothers convicted of a brutal set of murders and ordered a new sentencing hearing. The group does not disclose its donors. Others advocating against the justices also took issue with their records on issues such as abortion and education funding.
The justices were supported by four former governors, both Republicans and Democrats, and by the outside group Kansans for Fair Courts, which also does not disclose its donors. Kansans for Fair Courts spent $798,000 on advertisements supporting the justices and describing the anti-retention campaign as a power grab by Governor Sam Brownback, who would have been able to appoint their replacements if they had not been retained.
Louisiana Breaks State Record With Spending from Plaintiffs’ Lawyers, Oil Interests, and Charter School Supporters
Louisiana set a state spending record for supreme court elections in a race in which Judge Jimmy Genovese narrowly defeated Judge Marilyn Castle for an open seat on the state high court. More than $2.2 million was spent in total, including nearly $1.5 million by outside groups.
Genovese triumphed despite being outspent on the airwaves. He benefitted from $705,000 in television spending, including sponsoring $472,000 in advertisements himself. Restore Our Coast PAC spent an estimated $233,000 on ads in his support. His opponent Castle benefitted from $1.5 million dollars in TV spending. She spent $252,000 directly on ads, with the remainder coming from Citizens for Judicial Ethics and the Center for Individual Freedom.
The largest outside spender was the Center for Individual Freedom, which does not disclose its donors, leaving unanswered questions about why the race attracted so much attention. However, other funding sources suggest one motivation may have been the prevalence of so-called “legacy lawsuits,” collectively worth billions of dollars, in which oil and gas companies have been sued in Louisiana state courts for funding to restore environmentally damaged properties and repair coastal degradation. Castle’s donors included oil and gas interests, while Genovese received support from plaintiffs lawyers and the Restore Our Coast PAC, which has received donations from plaintiffs' lawyers involved in legacy lawsuits. Another potential interest this year was charter schools. Lane Grigsby, who founded and has largely supported Citizens for Judicial Excellence, is a known charter school supporter, who has previously spent money in school board races and contributed to a pro-charter school PAC. There is currently a lawsuit challenging public funding of charter schools in Louisiana in state court, suggesting one possible reason for Grigsby’s interest.
Montana Sees High-Spending Race for Open Court Seat
In Montana, Judge Dirk Sandefur defeated Kristen Juras for an open seat on the state high court. Sandefur was heavily supported by trial lawyers, while Kristen Juras received her support from conservative and business interests, such as the Montana Chamber of Commerce, Montana Petroleum Association, and StopSetemFreeSandefur.com, which was almost entirely funded by the Republican State Leadership Committee’s Judicial Fairness Initiative.
Outside groups spent $959,000 in independent expenditures, according to state disclosures, the vast majority of which was made in support of Sandefur. Montanans for Liberty and Justice, which received substantial contributions from the Montana Law PAC, the spending arm of the Montana Trial Lawyers Association, disclosed spending $743,000, including $558,000 in television ads, on Sandefur’s behalf. On the flip side, StopSetemFreeSandefur disclosed spending $213,000, including $78,000 on television ads, to oppose Sandefur.
Unless otherwise noted, spending estimates are from Kantar Media/CMAG, and are based on captured satellite data in the nation’s largest media markets. CMAG’s calculations do not reflect ad agency commissions or the costs of producing advertisements, nor do they reflect the cost of ad buys on local cable channels. CMAG’s data editing process may take several months to complete, and as a result, estimated spending totals may change once the process is finished.