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Bankrolling the Bench: The New Politics of Judicial Elections 2013–2014

Over the last decade and a half, state Supreme Court elec­tions have been trans­formed into politi­cized and costly contests, domin­ated by special interests seek­ing to shape courts to their liking. The most recent 2013–14 cycle was no differ­ent, as the pres­sure of big money — increas­ingly reflec­ted in outside spend­ing by special-interest groups — threatened the prom­ise of equal justice for all.

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AnchorExec­ut­ive Summary

Over the last decade and a half, state Supreme Court elec­tions have been trans­formed into politi­cized and costly contests, domin­ated by special interests seek­ing to shape courts to their liking. The most recent 2013–14 cycle was no differ­ent, as the pres­sure of big money—in­creas­ingly reflec­ted in outside spend­ing by special-interest groups—­threatened the prom­ise of equal justice for all.

Thirty-eight states conduct elec­tions for their highest courts. There are partisan and nonpar­tisan contested elec­tions, where multiple candid­ates vie for a single seat. And there are judi­cial reten­tion elec­tions, where sitting justices face yes-or-no votes. In total, almost 90 percent of state appel­late court judges must regu­larly be reelec­ted. Elec­tions mean campaigns, and campaigns cost money—as candid­ates, their campaign contrib­ut­ors, polit­ical parties, and special-interest groups all know.

Since 2000, The New Polit­ics of Judi­cial Elec­tions series has told the story of the politi­ciz­a­tion of state Supreme Court elec­tions, high­light­ing the news and trends that defined each elec­tion cycle. This edition goes deeper, connect­ing these spend­ing numbers to partic­u­lar interests and show­ing how indi­vidu­als, indus­tries, and special interests tried to shape the courts. From deep-pock­eted trial attor­neys in Illinois to a charter school advoc­ate in North Caro­lina, this report looks at who stands to win—and who stands to lose—when money floods our courtrooms.

1. Outside Spend­ing by Special-Interest Groups Made Up a Record Percent­age of Total Spend­ing.

Spurred in part by the U.S. Supreme Court’s 2010 ruling in Citizens United v. FEC, special interests are increas­ingly taking out their own ads and spon­sor­ing other elec­tion mater­i­als in judi­cial races rather than contrib­ut­ing directly to candid­ates. In 2013–14, outside spend­ing by interest groups, includ­ing polit­ical action commit­tees and social welfare organ­iz­a­tions, was a higher percent­age of total spend­ing than ever before, account­ing for over 29 percent of total spend­ing, or $10.1 million, topping the previ­ous record of 27 percent in 2011–12. When outside spend­ing by polit­ical parties is also included, the percent­age rises to 40, a record for a non-pres­id­en­tial elec­tion cycle and just short of the all-time non-candid­ate spend­ing record of 42 percent in 2011–12. Much of this spend­ing came from groups that were not required to publicly disclose their donors, or who were not required to disclose their expendit­ures under state law, making it hard to discern the interests seek­ing to shape state courts.

2. Big Spend­ers Domin­ated.

State court judges rule on cases that affect us all, but their campaigns are over­whelm­ingly suppor­ted by wealthy interests, enabling a system that may dispro­por­tion­ately elev­ate the pref­er­ences of wealthy spend­ers. The top 10 spend­ers this cycle, for example, accoun­ted for nearly 40 percent of total spend­ing nation­wide. This economic power was even more concen­trated when it came to tele­vi­sion spend­ing, as the top 10 TV spend­ers paid for 67 percent of total TV spend­ing. Further­more, in 15 of the 19 states where candid­ates raised money, a major­ity of their contri­bu­tions came from donors who were will­ing and able to shell out at least $1,000—a substan­tial figure in the context of relat­ively low-cost judi­cial elec­tions. Nearly one-third of these direct contri­bu­tions came from lawyers or lobby­ists, many of whom could be expec­ted to have interests before the courts.

3. “Tough on Crime” Was the Most Common Campaign Theme.

The politick­ing in judi­cial elec­tions around crim­inal justice issues is intense. A record 56 percent of tele­vi­sion ad spots this cycle discussed the crim­inal justice records of judges and candid­ates. These ads typic­ally either touted a candid­ate’s history of putting crim­in­als behind bars or attacked them as soft on crime. Previ­ous highs for crim­inal justice-themed ads compare at 33 percent in 2007–08 and 2009–10. While most of these ads were posit­ive in tone (prais­ing a candid­ate as “tough on crime”), crim­inal justice was also the single most common theme of attack ads. Over­all, 82 percent of attack ads discussed crim­inal justice issues, includ­ing an ad that claimed one sitting North Caro­lina Supreme Court justice was “not tough on child molesters” and “not fair to victims.” Who funds these ads? Often, groups with no demon­strable interest in crim­inal justice issues, suggest­ing that crim­inal justice may be used stra­tegic­ally as a wedge issue. The stakes are high: recent research suggests that the prom­in­ent role of crim­inal justice issues in judi­cial races may ulti­mately be influ­en­cing judi­cial decision-making.

4. National Organ­iz­a­tions Contin­ued to Target State—and Even Local—Races.

Spend­ing on state judi­cial elec­tions is also increas­ingly nation­al­ized. National groups and their state affil­i­ates spent an estim­ated $4.8 million on state Supreme Court races, approx­im­ately 14 percent of total spend­ing. (Because this figure excludes contri­bu­tions by national groups to state organ­iz­a­tions that did not spend exclus­ively on state Supreme Court elec­tions, the real number is likely much higher.) While data limit­a­tions make compar­is­ons over time diffi­cult, several metrics, includ­ing an analysis of TV spon­sor­ship, suggest that national groups paid greater atten­tion to state Supreme Court races in 2013–14 than in other recent cycles. And though voters of all polit­ical persua­sions care about the fair­ness of our courts, most of the spend­ing by national groups target­ing judi­cial elec­tions came from the polit­ical right. The Repub­lican State Lead­er­ship Commit­tee (RSLC) led the pack, spend­ing nearly $3.4 million across four state Supreme Court elec­tion­s—as well as one county court race—­through its publicly announced “Judi­cial Fair­ness Initi­at­ive.” Other major spend­ers included the Center for Indi­vidual Free­dom and Amer­ican Free­dom Build­ers.

5. Reten­tion Elec­tions Remained a Battle­ground for Special Interests and Partisan Polit­ics.

Reten­tion elec­tions, in which the public casts a yes-or-no vote for a sitting justice, have also become polit­ical battle­grounds in recent cycles. These races used to be fairly low-cost and low-atten­tion affairs, and, on aver­age, many still are. But in a hand­ful of states, reten­tion campaigns have become intense, high-profile, and expens­ive—­fre­quently in response to a decision in a contro­ver­sial case or when there is an oppor­tun­ity to change the ideo­lo­gical compos­i­tion of a court. Aver­age per seat spend­ing in reten­tion elec­tions in 2009–14 reflects a tenfold increase from the aver­age over the previ­ous eight years. Over­all, nearly $6.5 million was spent on reten­tion races in four states in 2013–14. Multi­mil­lion-dollar elec­tions in Illinois and Tennessee were some of the most expens­ive and conten­tious races this cycle. The trend puts new pres­sures on judges who had previ­ously been largely insu­lated from politi­cized judi­cial elec­tions.

Please note: Due to an error in the data­base of the National Insti­tute on Money in State Polit­ics, which NIMSP is now correct­ing, it was erro­neously repor­ted in Bank­rolling the Bench that Justice E. James Burke of Wyom­ing received $9,600 in campaign contri­bu­tions in 2014. Justice Burke in fact received no contri­bu­tions. Updates to the report website will be forth­com­ing. 

Bank­rolling the Bench: The New Polit­ics of Judi­cial Elec­tions