Outside Spending by Special Interests Floods Judicial Elections at Record Percentage, Report Finds

October 29, 2015

Once Rare, Multi-Million Dollar Judicial Races Have Become Commonplace Across U.S.

Special-interest groups accounted for a record-high 29 percent of total spending in state judicial races in the 2013-14 election cycle, according to a new report by the Brennan Center for Justice at NYU School of Law, Justice at Stake, and the National Institute on Money in State Politics.

Offering a detailed analysis of the latest state Supreme Court campaign trends, Bankrolling the Bench: The New Politics of Judicial Elections 2013-14 shows how special-interest spending has impacted the composition of state courts nationwide — and calls into question how campaign spending may affect courts’ decisions. The study finds that multi-million dollar judicial races, once unheard of, are now common across the country. Social welfare organizations and other outside groups are also increasingly spending on court races, the report notes, spurred in part by the U.S. Supreme Court’s Citizens United ruling in 2010. The cycle also saw a notable development in a highly public initiative by a national group, the Republican State Leadership Committee, which spent nearly $3.4 million across judicial races in five states.

“As special-interest groups continue to pump money into judicial races, Americans are rightfully questioning whether campaign cash influences courtroom decisions,” said Alicia Bannon, senior counsel in the Democracy Program at the Brennan Center for Justice and co-author of Bankrolling the Bench. “Fifteen years of data makes clear that high-cost and politicized judicial elections are not going away. It’s time for states to rethink how they select judges and to adopt common-sense solutions such as public financing and stronger rules for when judges must step aside from cases. Without real policy change, fair and impartial justice in America is at risk.”

“The hard numbers make it clear: when judges have to run for election, there is a risk that the concerns of ordinary people will take a back seat to the special interests and politicians who are trying to reshape courts to fit their agendas,” said Scott Greytak, Justice at Stake policy counsel and research analyst and lead author of the report. “This turns how we choose our judges into a political circus that is bad for our courts and bad for democracy. The good news is that we can fix this. We can work toward real reforms like merit selection, to help get money and politics out of the process, so judges can focus on their real work instead of raising money and fending off political attacks, and so all of us can have confidence that our courts are fair and impartial.”

While overall election spending was slightly lower than in other recent cycles due to a high number of uncontested races, more than $34.5 million was spent on state Supreme Court elections in a total of 19 states — much of it coming from special interests. Outside spending by interest groups in judicial races rose to a record-setting 29 percent of total spending, or $10.1 million, in 2013-14, topping the previous record of 27 percent in 2011-12. When outside spending by political parties was also included, total outside dollars accounted for 40 percent of total judicial election spending, a record for a non-presidential election cycle. 

Among the report’s other key findings:

  • The highest spenders overwhelmingly supported Republican and conservative candidates. Most of the top spenders targeting judicial elections supported conservative candidates, including nearly $3.4 million spent by the Republican State Leadership Committee. Democratic supporters also spent substantially in a few key races. Two of the top three highest spenders in the election cycle supported a Democratic candidate (in Michigan) or opposed a Republican candidate (in Illinois).
  • The airwaves around judicial elections were dominated by ads, many of them harsh, about criminal justice issues. “Tough on crime” was the most common campaign theme, as a record 56 percent of TV ad spots discussed the criminal justice records of judges and candidates.
  • Average per-seat spending on judicial elections has surged in states with retention (i.e, yes-or-no) elections. The average for 2009-14 represents a tenfold increase over the average for the previous eight years. Negative advertising in the most recent retention elections jumped to 46 percent of all ads, compared to 10 percent in the prior cycle.
  • Lawyers and business interests spent big on judicial elections. Business interests — many of whom frequently appear in state court — and lawyers and lobbyists were the largest donors to Supreme Court candidates, collectively responsible for 63 percent of all donations. Business groups and plaintiffs’ lawyers were also major contributors to several of the highest-spending outside groups.

Read Bankrolling the Bench here: www.newpoliticsreport.org.

The New Politics of Judicial Elections reports, produced biennially, have monitored election spending and other threats to the impartiality of state courts since 2000.

Contact: Brennan Center for Justice: Erik Opsal | erik.opsal@nyu.edu | 646-292-8356;
Justice at Stake: Laurie Kinney | lkinney@justiceatstake.org | 202-588-9454 | cell 571-882-3615;
National Institute on Money in State Politics: Edwin Bender | edwinb@followthemoney.org | 406-449-2480

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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. We work to hold our political institutions and laws accountable to the twin American ideals of democracy and equal justice for all. The Center’s work ranges from voting rights to campaign finance reform, from ending mass incarceration to preserving Constitutional protection in the fight against terrorism. Part think tank, part advocacy group, part cutting-edge communications hub, we start with rigorous research. We craft innovative policies. And we fight for them — in Congress and the states, the courts, and in the court of public opinion.

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 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.