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Who Pays for Judicial Races? The Politics of Judicial Elections 2015–16

Under the consti­tu­tion, our courts are obliged to provide equal justice regard­less of wealth, status, or polit­ical connec­tions. But in a new report, the latest in the series The Polit­ics of Judi­cial Elec­tions, we found that the integ­rity of our state supreme courts is increas­ingly under threat from a torrent of special interest money, often from secret sources. Using data from every state supreme court elec­tion in the most recent 2015–16 cycle, the report is the only compre­hens­ive analysis of these and other trends, and includes examples of what big spend­ers hope to achieve, the kinds of ads the fund, and the threats they pose to the appear­ance and real­ity of even­han­ded justice.


INTRO­DUC­TION

It’s no secret that the prolif­er­a­tion of big money in polit­ics, abet­ted by 2010’s Citizens United Supreme Court decision, has upen­ded Amer­ican elec­tions from the smal­lest mayoral races to the most high-profile U.S. Senate battles. What has received far less atten­tion, however, is that influ­ence-seek­ing money has also made tremend­ous inroads into our courts — insti­tu­tions that are consti­tu­tion­ally obliged to provide equal justice regard­less of wealth, status, or polit­ical connec­tions. Thirty-eight states conduct elec­tions for their state supreme courts, power­ful entit­ies that are gener­ally the final word on inter­pret­ing state law. This report, the most recent edition in a series that has tracked and analyzed state supreme court elec­tions since 2000, looks at the 2015–16 supreme court elec­tion cycle. We iden­ti­fied several disturb­ing new devel­op­ments that sharpen ques­tions about partisan and special interest pres­sures in judi­cial races and about the capa­city of impacted courts to deliver even­han­ded justice.

For the first time, we under­took an in-depth analysis of donor trans­par­ency among interest groups and found that “dark money” spend­ing, by groups whose fund­ing sources are concealed from the public, is boom­ing in state supreme court elec­tions. Outside spend­ing by interest groups also broke records again, while there were more high-cost races than ever before. Recog­niz­ing that expens­ive and politi­cized supreme court elec­tions are now a fixture in many states, this year we also changed the report’s title, drop­ping the word “New” from The New Polit­ics of Judi­cial Elec­tions.

➢Out­side spend­ing by interest groups shattered records. Rather than contrib­ut­ing to candid­ates or polit­ical parties, wealthy interests are increas­ingly rely­ing on outside spend­ing by groups as a way to influ­ence state supreme court elec­tions, mirror­ing the trend in elec­tions for polit­ical offices since the Supreme Court’s 2010 decision in Citizens United v. FEC. During the 2015–16 supreme court elec­tion cycle, polit­ical action commit­tees, social welfare organ­iz­a­tions, and other non-party groups engaged in a record $27.8 million outside spend­ing spree, making up an unpre­ced­en­ted 40 percent of over­all supreme court elec­tion spend­ing (as compared with only 29 percent in 2013–14). Funnel­ing spend­ing through outside groups may be attract­ive to donors because it often allows them to avoid campaign contri­bu­tion limits and disclos­ure require­ments.

➢Supreme court elec­tions saw an influx of secret money. The growth of outside spend­ing by interest groups has brought with it a stun­ning lack of trans­par­ency. For the first time, this report quan­ti­fied the amount of money in state supreme court elec­tions coming from sources concealed from the public. We found that only 18 percent of interest groups’ outside expendit­ures during 2015–16 could be easily traced to trans­par­ent donors. With respect to the remain­ing expendit­ures, donors were either undis­closed (54 percent), a type of spend­ing known as “dark money,” or buried behind dona­tions from one group to another (28 percent), making it diffi­cult or impossible to discern the ulti­mate fund­ing source, a type of spend­ing known as “gray money.” Such secrecy risks leav­ing voters unin­formed about who is seek­ing to shape state high courts, and leaves litig­ants (and often even judges) without the tools to identify poten­tial conflicts of interest.

➢There were more million-dollar supreme court races than ever before. Twenty-seven justices were elec­ted in $1 million-plus races in 2015–16, compared with the previ­ous high of 19 justices in 2007–08. Pennsylvania also set an all-time national record for its 2015 elec­tion, attract­ing a total of $21.4 million in spend­ing for three open seats. A greater number of justices elec­ted in high-dollar races means more poten­tial conflicts of interest and heightened pres­sure on all judges to curry favor with wealthy interests who can subsid­ize the increas­ingly high cost of a future elec­tion

➢ More than half of all states with elec­ted high courts are now impacted by big-money elec­tions. By the start of 2017, 20 states had at least one sitting justice who had been involved in a $1 million race during his or her tenure. By contrast, in 1999, the number was only seven. As of Janu­ary 2017, one-third of all elec­ted justices sitting on the bench had run in at least one $1 million-plus elec­tion. These figures high­light that across the coun­try, politi­cized state supreme court elec­tions are no longer the excep­tion, but the rule.

➢ Campaign ads targeted judi­cial decisions, often in mislead­ing ways. More than half of all negat­ive tele­vi­sion ads aired during the 2015–16 elec­tion cycle criti­cized judges for their rulings on the bench, often in a mislead­ing way designed to stoke emotion and anger. Target­ing judi­cial decisions poses worry­ing threats to judi­cial inde­pend­ence, and there is both anec­dotal and empir­ical evid­ence that such elec­tion pres­sures impact how judges rule in cases.

Courts are power­ful. Their rulings impact our health, our free­dom, and our bank accounts — leav­ing behind winners and losers. Our system can only work if judges decide cases, in good faith, based on their under­stand­ing of what the law requires — and if the public believes that they are doing so. As power­ful interests increas­ingly see the courts as an effect­ive vehicle for further­ing their polit­ical, ideo­lo­gical, or finan­cial agen­das, this prom­ise of both the appear­ance and real­ity of even­han­ded justice is at risk.

 

Who Pays for Judi­cial Races? The Polit­ics of Judi­cial Elec­tions 2015–16 by The Bren­nan Center for Justice on Scribd