Record Outside Spending on Judicial Races Takes Legal Issues From Docket to Ballot

November 3, 2016

Contributions from charter school enthusiasts, like billionaire philanthropist Bill Gates, and anger over racial gerrymandering are helping drive spending by outside groups in state supreme court elections to record levels, a new analysis of television ad buys by the Brennan Center for Justice shows.

Fueled by the Citizens United decision, this outside spending, much of it secret and unaccountable, raises troubling questions about whether crucial judicial decisions on issues such as voting rights and equality in education are on the docket, on the ballot, or up for sale.

Outside special interest groups — which do not face contribution limits, and many of which do not disclose their donors — have already surpassed prior records for TV spending in state supreme court elections, with more than $1.5 million worth of TV ad buys over the past week alone. Total outside group spending for the 2015-16 election cycle is an estimated $15.6 million, outstripping the previous record set in 2011-12 by more than $2 million with several days left until Election Day.

Outside groups are also a higher proportion of total spending than ever before: Forty-eight percent of all TV spending has come from such groups this cycle, compared with the prior record of 38 percent in 2011-12. Political parties, by contrast, have largely vanished from supreme court races this cycle, withering to only 2 percent of total television spending, as compared with 24 percent in 2011-12, with the balance coming from the campaigns of judicial candidates themselves.

“What we’re seeing is an arms race fostered by Citizens United that allows interest groups to try and shape courts in their image by targeting individual judges,” said Alicia Bannon, senior counsel in the Brennan Center’s Democracy Program. “This record spending undermines the integrity of our judicial system and raises crucial questions about who the courts serve.”

Only two of the 14 groups that have spent money on television ads this fall have fully transparent donors: the remaining 12 include so-called “social welfare” organizations that do not disclose their donors, as well as PACs that list social welfare organizations or other PACs as among their contributors. This makes it difficult (or sometimes impossible) to discern many of the underlying interests seeking to influence judicial races, and potentially hides conflicts of interest in cases involving major spenders.

Despite this limited transparency, an analysis of state disclosures and TV ad contracts reveals several key interests that have turned their attention, and wallets, to state judicial races.

Charter School Ruling Draws Bill Gates and Other Billionaires to Washington Race

In Washington, Bill Gates has contributed $200,000 to a group, Citizens for Working Courts Enterprise WA, that is supporting municipal court judge Dave Larson in his race against incumbent Justice Charlie Wiggins. Washington has three contested supreme court seats this fall. Along with Gates, other individuals with Microsoft ties are also funding Citizens for Working Courts, including former Microsoft CEO Steve Ballmer (and his wife Connie Ballmer), and Microsoft’s current president, Brad Smith. Vulcan Inc., which was founded by Microsoft co-founder Paul Allen, has also contributed $300,000 to the group. 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 Court struck down in 2015 because it gave control of charter schools to appointed, rather than elected, boards. Wiggins voted with the majority.

In all, groups and parties have spent $1,381,000 in independent expenditures focused on removing one or all of the sitting justices, including $539,800 by Citizens for Working Courts, while the three justices have collectively benefitted from $330,000 in outside spending. The candidates (challengers and incumbents) have spent $816,000 in total during the primary and general election.

North Carolina Sees Spending Arms Race in Election that Could Give Democrats a Court Majority

With an election that has the potential to shift the North Carolina Supreme Court’s majority from Republican to Democratic, outside groups on both sides are pouring money into the race between incumbent Justice Robert Edmunds and his challenger, State Superior Court Judge Michael Morgan. North Carolina represents a break with previous trends, in which national attention on state judicial races has been concentrated almost exclusively on the right. Redistricting is a key issue, including Edmunds’ role in writing a state court 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, and that has been the subject of negative ads. 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.)

Last week, President Obama endorsed Morgan, stating that he “understands what ordinary families are going through and he has a track record of administering fair and impartial justice.” The group North Carolina Families First has disclosed spending close to $1 million on ads opposing Edmunds. Color of Change PAC, the independent expenditure arm of the racial justice organization Color of Change, has disclosed $210,170 in expenditures in support of Morgan. On the pro-Edmunds side, major players include the North Carolina Chamber of Commerce, which recently received $1 million from the U.S. Chamber of Commerce’s Institute for Legal Reform for pro-Edmunds ads, and Fair Judges, which received donations totaling $881,000 between Oct. 17 and Oct. 28, including $300,000 from the Republican State Leadership Committee, and $100,000 from the North Carolina Citizens for Freedom in Education, a group that reportedly supports school vouchers and charter schools. In total, North Carolina has seen nearly $2.1 million in TV and radio ad buys for the general election, including $1.8 million from outside groups, according to FCC files. An analysis of state disclosures by Facing South last week documented close to $2.2 million in total outside expenditures.

New Ads Air in Kansas as PAC with Ties to Secretary of State Kobach Joins Anti-Retention Campaign

New ads began airing in Kansas this week opposing the retention of four supreme court justices, in a politically charged election in which the state Republican Party and several conservative groups have called for the ouster of the justices, citing decisions they have made on issues such as the death penalty, abortion, and education funding, while four former governors (Republicans and Democrats) have campaigned in support of the justices. Kansans for Conservative Values began airing radio ads opposing the justices’ retention this week; the group was started earlier this year by current and former staffers of Kansas Secretary of State Kris Kobach. Another anti-retention group, Kansans for Justice, also put out a new ad this week, highlighting a 2014 decision in which the Court vacated the death sentences of brothers convicted of a brutal set of murders and ordered a new sentencing hearing. The ad features family members of the victims, stating that their campaign against the justices “has nothing to do with any political parties or politicians.” Kansans for Justice has spent an estimated $382,000 this cycle on television ads. A pro-retention group, Kansans for Fair Courts, has spent an estimated $271,000.

Republican State Leadership Committee Enters New States While Facing Disclosure Violation in Montana

The Republican State Leadership Committee, a corporate-funded group whose mission is to elect Republicans in down-ballot races, has put money into two new state supreme court races. The RSLC contributed $50,000 to Citizens for Judicial Excellence in Louisiana, a group opposing state court of appeals judge Jimmy Genovese, who is vying for an open seat on the state supreme court, and $300,000 to Fair Judges, a group supporting incumbent North Carolina Supreme Court Justice Edmunds. The RSLC continues to be the largest outside spender in the 2015-16 election cycle, having spent more than $4.4 million in eight states (counting direct spending as well as contributions to other groups): Louisiana, North Carolina, Montana, Ohio, Arkansas, West Virginia, Wisconsin, and Pennsylvania.

At the same time, this week Montana’s Commission of Political Practices ruled that the RSLC violated state campaign finance disclosure laws by failing to properly report and disclose campaign expense and contribution information in connection with a $268,000 expenditure to a state group, StopSetEmFreeSandefur.com, in the Montana supreme court election. The ruling noted that “Disclosures in Montana’s Supreme Court elections have become of particular interest, given the large amounts of money spent for or against candidates in those elections during the 2014 and 2016 election cycles.”

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Total TV spending in this cycle’s state supreme court races from candidates, parties, and outside groups now nears $32.7 million, just short of the 2011-12 record of $35.5 million. States attracting the most TV spending this fall, as documented by contracts posted in the FCC website, include: North Carolina ($2,038,000), Ohio ($1,897,000.), Louisiana ($1,762,000), Michigan ($1,531,000), Mississippi ($1,018,000), Kansas ($653,000), and Washington ($475,000), which has also seen $125,000 spent on radio advertisements.

The Brennan Center will continue to monitor and analyze judicial election trends, posting data and regular updates on its state supreme court elections page. Additional information on candidate fundraising can also be found here.

Methodology

Data on TV and radio ad buys for the November general election is based on an analysis of contracts posted on the FCC’s website. Spending totals are current as of 12pm ET on November 2, 2016. Television spending data for earlier races in 2015-16 cycle came from estimates from Kantar Media/CMAG, with the exception of West Virginia, where we relied on state disclosures. Information about donors was taken from online state disclosure databases and news sources, as reflected in the hyperlinks. All spending figures in this analysis are in 2016 dollars.