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Expert Brief

Fall Overview: 2016 Judicial Elections See Secret Money and Heightened Outside Spending

Politicized and High-Dollar Races Threaten Fair and Impartial Courts

Published: September 14, 2016

Politi­cized and High-Dollar Races Threaten Fair and Impar­tial Courts

In an elec­tion season that has seen an unpre­ced­en­ted block­ade of Pres­id­ent Obama’s Supreme Court nominee, Merrick Garland, it’s easy to over­look troub­ling devel­op­ments for judi­cial selec­tion at the state court level, where 95 percent of all cases are heard.

In total, 39 states hold elec­tions to choose all or some of their judges. This Novem­ber, 27 states will hold elec­tions for seats on their highest courts. Early indic­at­ors suggest that several of these races will be domin­ated by special interest spend­ing, a large portion of it secret money from groups that do not disclose their donors, accord­ing to an analysis by the Bren­nan Center for Justice of seven supreme court elec­tions and primar­ies that were completed earlier in 2016. The likely upshot: greater negat­ive campaign­ing, and voters, litig­ants, and poten­tially even judges in the dark about possible conflicts of interest.

Look­ing forward, the Bren­nan Center has also iden­ti­fied judi­cial elec­tion battle­grounds to watch this fall — the states where harsh and expens­ive supreme court races look likely, based on indic­at­ors such as spend­ing in primar­ies, candid­ate fundrais­ing, and state­ments by politi­cians and interest groups. In Wash­ing­ton and North Caro­lina, for example, interest groups spent six figures on radio and tele­vi­sion ad buys during the primar­ies, while polit­ical lead­ers and interest groups in Kansas and Montana have raised the temper­at­ure of these states’ judi­cial races through public state­ments and endorse­ments. In Ohio, one supreme court candid­ate has already booked $644,000 in TV ads, in what looks poised to be a big-spend­ing race for an open seat.

The Bren­nan Center is monit­or­ing all state supreme court contests this fall and will be issu­ing peri­odic releases and analyses in the lead-up to Elec­tion Day. Research and data will be housed on the Bren­nan Center’s supreme court elec­tions page.

“Special interests know that state supreme courts have tremend­ous power to shape the legal and policy land­scape on everything from civil rights to tort reform, even beyond a state’s borders, and they have been pour­ing money into these races in recent years,” said Alicia Bannon, Senior Coun­sel in the Demo­cracy Program at the Bren­nan Center for Justice. “Polling shows that 95 percent of the public believes campaign spend­ing influ­ences how judges rule in cases. With the rise of outside spend­ers that do not disclose their donors, we can’t even identify poten­tial conflicts of interest. This poses a major threat to the integ­rity of our justice system.”

Troub­ling Early Trends: Secret Outside Spend­ing & Attack Ads

The Bren­nan Center reviewed TV ad buys in the seven states that have already held a primary or early general elec­tion for their state supreme court this year, and where at least one TV ad was broad­cast (AR, ID, NC, OH, TX, WI, WV). These elec­tions suggest several trends to look for in Novem­ber’s round of judi­cial contests.

  • Outside Spend­ing Domin­ated: To date, spend­ing by outside groups has played a larger role in 2016 state supreme court elec­tions than in past years. Candid­ates were respons­ible for only 35 percent of tele­vi­sion spend­ing in these early elec­tions, compared to 42 percent over­all in 2013–14 and 39 percent in 2011–12. All of the outside spend­ing in 2016 to date has come from groups. The Repub­lican State Lead­er­ship Commit­tee, which describes its mission as “work­ing to elect down-ballot, state-level Repub­lican office­hold­ers,” was the single largest outside spender, putting at least $2.2 million into races in three states (includ­ing tele­vi­sion spend­ing in West Virginia and Arkan­sas and radio advert­ise­ments in Wiscon­sin). While outside groups are distinct from judi­cial candid­ates’ campaigns, at least in theory, the separ­a­tion is not always clear-cut. In Febru­ary, for example, a Wiscon­sin Supreme Court justice uploaded b-roll foot­age of herself onto YouTube, which was then used in tele­vi­sion ads by an outside group.

  • Secret Spend­ers Predom­in­ated: Seventy percent of outside tele­vi­sion spend­ing came from so-called “dark money” sources, which do not disclose their donors. This dynamic raises partic­u­lar concerns in judi­cial races, where dark money can obscure conflicts of interest in cases involving major spend­ers. Although data is limited, there are indic­a­tions this reflects a much higher propor­tion of completely-undis­closed money than is seen in other state races. A recent Bren­nan Center study of state and local elec­tions in six states found that 12 percent of outside spend­ing in 2014 came from dark money sources. (The study further found that an addi­tional 59 percent of outside spend­ing came from “gray money” sources, entit­ies that disclose donors in a way that makes the original sources of money diffi­cult or impossible to discern. No gray money sources have been iden­ti­fied in any of the 2016 supreme court races.)

  • Groups Went on the Attack: Tele­vi­sion ads were also more negat­ive than those seen in recent years. The rise of outside spend­ing was a key factor. So far in 2016, outside groups were respons­ible for 69 percent of all negat­ive ad spots — redu­cing the abil­ity of candid­ates to control the tenor and substance of their own races. Over­all, only 49 percent of all ad spots were posit­ive in tone, compared with 79 percent in 2013–14 and 76 percent in 2011–12. What were the attacks about? One-in-four portrayed judges as “soft on crime.” There is grow­ing evid­ence that these kind of elec­tion pres­sures lead to harsher senten­cing in crim­inal cases.

  • State Spend­ing Records Fell: Of the three states that held contested off-cycle supreme court elec­tions in 2016 (AR, WI, WV), two set state records for tele­vi­sion spend­ing (AR, WV). All three had more than $1 million in spend­ing on tele­vi­sion ads. Over­all, more than $9.5 million was spent on TV in primar­ies and off-cycle races this year, accord­ing to estim­ates from Kantar Media/CMAG and West Virginia disclos­ure state­ments.

States to Watch in 2016

Several states seem likely to attract high-spend­ing interest groups and politi­cized races this year, based on early spend­ing and fundrais­ing patterns and public state­ments. Already, candid­ates have booked TV ads in six states for the fall, total­ing $1.1 million, accord­ing to a review of TV ad contracts. Addi­tional inform­a­tion about the elec­tion land­scape can be found on the Bren­nan Center’s supreme court elec­tions page.

  • Kansas: The state supreme court elec­tion this year is already highly charged, as multiple interests have coalesced to support or oppose the ouster of four justices stand­ing for reten­tion (an up-or-down vote where the judge stands unop­posed). The state Repub­lican Party, as well as Kansans for Justice and Kansans for Life, are vocally oppos­ing the justices, citing decisions they have made on issues such as the death penalty, abor­tion, and educa­tion fund­ing. On the other side, four former governors (Repub­lic­ans and Demo­crats) are campaign­ing in support of the justices, and Kansans for Fair Courts is also promot­ing reten­tion efforts. However, loop­holes that exempt reten­tion elec­tions from the state’s disclos­ure laws will make it diffi­cult to discern who is behind any money spent in these races.

  • Montana: Outside interests appear to be marshal­ing around a Montana supreme court race for an open seat, between law professor Kristen Juras and district court judge Dirk Sande­fur. Juras was endorsed by the Montana Cham­ber of Commerce, and Montana GOP offi­cials and the head of the Montana Petro­leum Asso­ci­ation hosted a fundraiser for her. On the other side, the Montana Trial Lawyers Asso­ci­ation has reportedly amassed more than $110,000 in contri­bu­tions to its spend­ing arm the Montana Law PAC, although it has not yet endorsed a candid­ate. Sande­fur has booked $121,385 in airtime on broad­cast TV, and as of Aug. 27, had raised $414,000. Juras has raised over $140,000, and has not yet booked airtime. In 2014, Montana’s supreme court elec­tion set a state record, with $1.5 million in spend­ing, 75 percent of which came from outside groups.

  • North Caro­lina: This year’s elec­tion, in which Justice Robert Edmunds faces chal­lenger Judge Michael Morgan, repres­ents an oppor­tun­ity to poten­tially shift the ideo­lo­gical compos­i­tion of the Court from Repub­lican-affil­i­ated to Demo­cratic-affil­i­ated judges. The state’s primary elec­tion on June 7 saw more than half a million dollars in spend­ing accord­ing to state disclos­ures, a major­ity of it from the North Caro­lina Cham­ber of Commerce in support of Justice Edmunds.

  • Ohio: Supreme Court elec­tions in Ohio are typic­ally high-cost; every elec­tion since 2000 has seen at least $3 million worth of spend­ing, includ­ing a record $11 million in 2000. This year, the Buck­eye State has already seen one candid­ate, Pat DeWine, who will face off against Cynthia Rice in one of two races for an open seat, spend almost $644,000 in ad book­ings for the fall. Rice has not yet purchased airtime.

  • Wash­ing­ton: Two contro­ver­sial supreme court decisions regard­ing educa­tion fund­inghave sparked an effort to replace three sitting high court judges. One 2012 ruling ordered the state to increase school fund­ing, ulti­mately lead­ing the Court to fine the legis­lature for its inac­tion, while a 2015 decision found that charter schools could not receive public funds. In response, the state legis­lature recently passed a new charter school law. One chal­lenger, Greg Zempel, bene­fit­ted from $230,000 in outside spend­ing during his primary, includ­ing almost $130,000 from Stand for Chil­dren WA PAC, which is funded by charter school support­ers, and $100,000 from Judi­cial Integ­rity WA, which was co-foun­ded by the former major­ity leader of the Wash­ing­ton Senate.

Other states to watch include Kentucky, Missis­sippi, Louisi­ana and New Mexico, where supreme court candid­ates have already booked tele­vi­sion ads for the fall, and Michigan, which has seen multi-million dollar races in recent years.

 

Meth­od­o­logy: Data on TV ad buys for the Novem­ber elec­tions is based on an analysis of contracts posted on the FCC’s website. Spend­ing totals are current as of 12:30 PM ET on Sept 13, 2016. To analyze primar­ies and early races, the Bren­nan Center looked at every state in which at least one tele­vi­sion ad was broad­cast in 2016 (AR, ID, NC, OH, TX, WI, WV). Spend­ing data came from estim­ates from Kantar Media/CMAG, with the excep­tion of West Virginia, where we relied on state disclos­ures. The analysis of ad tone and themes was based on internal coding of ads by the Bren­nan Center. The analysis of dark money followed the same meth­od­o­logy described in this recent Bren­nan Center report. For one major spender, the Repub­lican State Lead­er­ship Commit­tee, we limited the dark money analysis to the top 20 contrib­ut­ors, as avail­able on open­secrets.org.