The flood of special interest money into elections is threatening the integrity of the judicial system, says “The New Politics of Judicial Elections,” a report released Thursday. The numbers are stark: $56.4 million was spent on high court elections in the 2011-12 cycle, with $33.7 million going into state Supreme Court campaign TV ads, up 42 percent from the ’08 campaign. “It’s the biggest threat to democracy that nobody’s heard of,” says Bert Brandenburg, executive director of Justice at Stake, the nonpartisan group that partnered on the report with the Brennan Center and the National Institute on Money in State Politics.
Courts and judges are supposed to be insulated from politics, but the Supreme Court’s Citizens United decision in 2010 unleashed special interest money to a degree previously unseen in judicial elections. Out-of-state money had already begun to influence judicial campaigns, and Citizens United “poured gasoline on it,” says Brandenburg. Television ads aimed at pressuring judges and skewed toward crime are reminiscent of the infamous Willie Horton ad from the 1988 presidential campaign. “The Willie Horton ad was so stigmatized at the national level because of race baiting, yet they have become a new normal at the judicial level,” says Brandenburg.
The report cites a rematch in Kentucky between state Supreme Court Justice Will T. Scott and Court of Appeals Judge Janet Stumbo, whom he had defeated in 2004. Using flashing images of black murderers and pregnant white women, the Scott ad, which aired 71 times before the election, referred to murder convictions that Stumbo had voted to reverse. It is among the ads on the report’s “Hall of Shame,” which features candidates for the high courts in Ohio, Michigan, and Wisconsin accused of “sympathy for rapists,” volunteering to “free a terrorist” (as co-counsel for a Guantanamo Bay detainee), denying benefits to a cancer patient, and protecting sex offenders.
At the very least, says Brandenburg, judges are going to be less willing to take a risk in a capital punishment case. None of the ads criticize justices for being too tough. It’s fair to ask whether judges elected in today’s political climate can protect citizens’ rights fairly and resolve disputes without being intimidated by the special interest groups that use campaign money to influence their decisions. “In the end, we want judges to decide cases based on the law and the Constitution, and not based on who gave them money,” says Alicia Bannon at the Brennan Center.
Seven of the top 10 “Super Spenders” the report identifies are conservative business groups, including the Koch Brothers and Americans for Prosperity. The latter spent $155,000 on direct mail and television advertising in Florida in an effort to unseat three justices who had voted to reject a ballot proposal that would have amended the state constitution to resist the Affordable Care Act. Bolstered by fundraising campaigns of their own with money raised principally from lawyers, the three justices retained their seats. Still, the trend is disturbing, says Brandenburg: “In an arms race, whichever side you come out, you vow to spend more. It creates a system where people fear justice is for sale.”
Americans for Prosperity spent a quarter of a million dollars in North Carolina in the 2012 election, the largest expenditure ever in a judicial campaign. Another group, the conservative North Carolina Judicial Coalition, spent $2.9 million on TV ads, the first time a super PAC had ventured into a judicial election. “What Citizens United did was help create an infrastructure that is now bleeding into state races,” says Bannon.
The opening in North Carolina for outside groups was the end of public financing for appellate judges. First introduced in 2002, public financing was beloved by justices, who no longer had to worry about spending all their time raising money by calling up lawyers who would appear before them. Public financing also was popular with the public, and it acted as a heat shield, keeping away special interest groups with an agenda. There was less incentive for them to come into the state. Ending public financing for judicial elections was part of a broader effort to roll back a number of voting rights protections by the Republican governor and GOP-controlled legislature. The beneficiary was incumbent Justice Paul Newby, praised by Americans for Prosperity for upholding the rights of taxpayers to sue the government over misuse of taxpayer dollars.
The big players in directing money to influence state judicial elections are mostly conservative, national groups such as the Washington-based Judicial Crisis Network and the NRA-linked Law Enforcement Alliance of America. The report highlights progressive groups as well, including the National Education Association, which backed the challenger to Justice Newby in North Carolina, and the Human Rights Campaign, which was active in the successful campaign to retain Justice David Wiggins in Iowa after he voted in favor of same-sex marriage.
For nostalgia buffs, Michigan Supreme Court candidate Bridget Mary McCormack tapped the cast of The West Wing for a four-minute “walk and talk” ad that doubled as a public service announcement. Her sister had been a cast member. The ad went viral with more than a million views on YouTube. McCormack also advertised heavily on Facebook, a move her campaign manager credited with delivering her the margin of victory. “The New Politics of Judicial Elections, 2011-12,” has many faces, some inspiring, some disheartening, yet all instructive on what lies ahead as judges are pulled into the polarized political landscape.