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Report

New Politics of Judicial Elections 2011–12

In the first full elec­tion cycle since Citizens United, special interest groups and polit­ical parties spent an unpre­ced­en­ted $24.1 million on state court races in 2011–12 — an increase of over $11 million since 2007–08. This dramatic increase in inde­pend­ent spend­ing fueled the cost­li­est elec­tion cycle for TV spend­ing in judi­cial elec­tion history, lead­ing to nasty attack ads, and posing grave new threats to our fair and impar­tial courts.

“The New Polit­ics of Judi­cial Elec­tions, 2011–12” analyzes the prom­in­ent role of special interest money in state Supreme Court elec­tions.  In 2011–12, many of these races “seemed alarm­ingly indis­tin­guish­able from ordin­ary polit­ical campaigns—fea­tur­ing everything from Super PACs and mudsling­ing attack ads to millions of dollars of candid­ate fundrais­ing and inde­pend­ent spend­ing.”  The report docu­ments how the “bound­ar­ies that keep money and polit­ical pres­sure from inter­fer­ing with the rule of law have become increas­ingly blurred.” The report was writ­ten by Justice at Stake, the Bren­nan Center for Justice at NYU School of Law, and the National Insti­tute on Money in State Polit­ics.

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Intro­duc­tion

In recent years, as the cost of judi­cial campaigns has soared, the bound­ar­ies that keep money and polit­ical pres­sure from inter­fer­ing with the rule of law have become increas­ingly blurred.

Thirty-eight states conduct elec­tions for their Supreme Courts, includ­ing partisan and nonpar­tisan contested elec­tions and up-or-down judi­cial reten­tion votes. During the 2011–12 elec­tion cycle, many of these judi­cial races seemed alarm­ingly indis­tin­guish­able from ordin­ary polit­ical campaigns—fea­tur­ing everything from Super PACs and mudsling­ing attack ads to millions of dollars of candid­ate fundrais­ing and inde­pend­ent spend­ing.

Since 2000, The New Polit­ics of Judi­cial Elec­tions series has tracked the increased politi­ciz­a­tion and escal­at­ing spend­ing in state judi­cial campaigns, as well as the grow­ing role of special interest money. These trends contin­ued in 2011–12, even as several new and troub­ling devel­op­ments emerged.

  • Tele­vi­sion spend­ing hit record highs: States saw record levels of spend­ing on tele­vi­sion advert­ising in high court races. The 2011–12 cycle saw $33.7 million in TV spend­ing, far exceed­ing the previ­ous two-year record of $26.6 million in 2007–08 ($28.5 million in infla­tion-adjus­ted terms). In 2012 alone, more than $29.7 million was spent to air TV ads, topping the previ­ous single-year record of $24.4 million in 2004 ($29.3 million when adjus­ted for infla­tion). Negat­ive advert­ise­ments aired in at least 10 states, includ­ing mislead­ing ads that described candid­ates as being “sympath­etic to rapists,” “volun­teer[ing] to help free a terror­ist,” and “protect[ing] . . .sex offend­ers.”
  • Inde­pend­ent spend­ing escal­ated: Citizens United v. FEC, 2010’s block­buster Supreme Court decision that unleashed unlim­ited inde­pend­ent spend­ing on elec­tions, cast a long shadow on the 2011–12 judi­cial elec­tion cycle. Special-interest groups alone spent a record $15.4 million on tele­vi­sion ads and other elec­tion­eer­ing in high court races in 2011–12, account­ing for more than 27 percent of the total amount spent on high court races. This spend­ing was more than 50 percent higher than the previ­ous record $9.8 million in inde­pend­ent spend­ing by interest groups in 2003–04 ($11.8 million when adjus­ted for infla­tion), which made up 16 percent of total spend­ing.
  • National polit­ics invaded judi­cial races: National groups better known for their efforts to influ­ence pres­id­en­tial and congres­sional elec­tions turned their sights on judi­cial contests in several states. Major spend­ers included the Repub­lican State Lead­er­ship Commit­tee in North Caro­lina, the National Rifle Asso­ci­ation-linked Law Enforce­ment Alli­ance of Amer­ica in Missis­sippi, the progress­ive advocacy group Amer­ica Votes in Flor­ida, and the conser­vat­ive group Amer­ic­ans for Prosper­ity, finan­cially suppor­ted by billion­aire broth­ers Charles and David Koch, in Flor­ida and North Caro­lina.
  • Costly races contin­ued around the coun­try: Total estim­ated spend­ing on judi­cial races in 2011–12 was $56.4 million, slightly lower than the total spend­ing in the last pres­id­en­tial elec­tion cycle in 2007–08 ($57.1 million, or $60.7 million when adjus­ted for infla­tion). Twelve states saw more than $1 million of spend­ing on high court races in 2011–12, similar to 2007–08, when spend­ing surpassed $1 million in 11 states. Spend­ing was concen­trated among a few interest groups and polit­ical parties: the top 10 spend­ers were respons­ible for approx­im­ately $19.6 million of total spend­ing in 2011–12, compared with just $12.3 million in 2007–08.
  • Merit selec­tion faced new chal­lenges: In merit selec­tion states, judges are appoin­ted from a slate of qual­i­fied final­ists iden­ti­fied by a nomin­at­ing commis­sion, and then typic­ally stand for an up-or-down reten­tion vote after subsequent terms. While reten­tion races have histor­ic­ally been less politi­cized than contested elec­tions, in 2012 two merit selec­tion states, Flor­ida and Iowa, saw prom­in­ent and polit­ic­ally charged chal­lenges to sitting justices. These justices were ulti­mately retained, but only after costly battles. Several states also saw ballot meas­ures in 2012 that would have injec­ted new politi­ciz­a­tion into merit selec­tion systems. These propos­als were like­wise rejec­ted by voters.

The good news is that states retain power­ful tools to resist the grow­ing politi­ciz­a­tion of judi­cial races. Strong disclos­ure laws and recusal rules promote account­ab­il­ity and help ensure that special interests cannot buy justice. Public finan­cing can provide judi­cial candid­ates with an altern­at­ive path to running a compet­it­ive race without need­ing to rely on contri­bu­tions from lawyers and litig­ants seek­ing to influ­ence judi­cial decision-making. Merit selec­tion, mean­while, is designed to ensure that judges are selec­ted based on their qual­i­fic­a­tions and to help insu­late them from polit­ical pres­sure (although in recent years concerns have emerged regard­ing the politi­ciz­a­tion of reten­tion elec­tions). Finally, voter guides and judi­cial perform­ance eval­u­ations give ordin­ary citizens the inform­a­tion they need to assess judges based on their exper­i­ence and qual­i­fic­a­tion­s—and not on mislead­ing attack ads. These common­sense meas­ures can help ensure that citizens feel confid­ent that their judges are account­able to the law and the Consti­tu­tion, not to special interests.


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New Polit­ics of Judi­cial Elec­tions 2011–12


 


About the Authors

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 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. 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.

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.