The Money Trail
Independent Spending Drives Judicial Races
The growing role of independent spending by special-interest groups and political parties in state Supreme Court races was one of the most notable and troubling trends in 2011–12, the first full election cycle since the 2010 Citizens United ruling changed the landscape for political contributions.1
Instead of directly contributing money to judicial candidates, interest groups and political parties increasingly spent money independently of campaigns, often leading to less transparent and more negative races. In many cases, weak disclosure laws coupled with opaque names that obscured groups’ political or philosophical leanings made it impossible to discern the sources behind increased interest group spending.
Total spending on high court races in 2011–12 was slightly lower than total spending in the last presidential election cycle (an estimated $56.4 million in 2011–12, as compared to $57.1 million in 2007–08, or $60.7 million when adjusted for inflation2). At the same time, however, spending by special-interest groups and political parties on television ads and other electioneering rose to unprecedented levels.*
* Total spending is estimated based principally on campaign contribution data furnished by the National Institute on Money in State Politics and independent television spending data provided by Kantar Media/CMAG. For Florida, Illinois, Iowa, Michigan, Montana, North Carolina, and Wisconsin, additional information on independent expenditures by parties and interest groups was obtained through campaign finance filings and other verified reports. This data was included in spending totals to the extent it did not duplicate television spending estimates provided by Kantar Media/CMAG. See Chapter 2, note 1 for a further description of the Kantar Media/CMAG methodology.
Interest groups put a record $15.4 million toward independent spending on state Supreme Court races in 2011–12, accounting for more than 27 percent of the total dollars spent on high court races. This figure is 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 accounted for 16 percent of total spending. When independent spending by political parties is also included, total non-candidate spending in 2011–12 was a record $24.1 million, or 43 percent of total spending. In contrast, non-candidate spending was only 22 percent ($12.8 million) of total spending in 2007–08 and 30 percent ($11.4 million) in 2009–10.
The shift toward non-candidate spending in state Supreme Court races was most pronounced among the highest spenders. Ninety-seven percent of the dollars spent by the top 10 spenders in 2011–12 went toward independent expenditures, rather than candidate contributions. Only three of the top 10 spenders donated any money at all to candidates and only one (the Ohio Republican Party) put a majority of its funding towards direct contributions.
Independent spending by interest groups (as compared to political parties) was particularly significant in 2011–12: 11 states saw independent spending by interest groups, while only two states (Michigan and Ohio) saw independent spending by political parties.
This trend is part of the long shadow cast by Citizens United v. FEC, which paved the way for unlimited corporate and union independent expenditures in federal elections and in the 24 states that restricted such spending at the time of the ruling.3 The decision led to a significant shift toward interest group spending in federal and state races, as well as the development of new spending infrastructure through Super PACs and so-called “social welfare” organizations, or 501(c)(4)s, which do not have to disclose their donors—changes that trickled down into state court races.
In North Carolina, for example, the Super PAC North Carolina Judicial Coalition, backed by conservative and business interests, spent nearly $2.9 million in its efforts to reelect incumbent Justice Paul Newby, making it the biggest spender in the state.
North Carolina’s Supreme Court race was also targeted by the conservative Americans for Prosperity, a nonprofit social welfare group linked to the billionaire brothers Charles and David Koch, which spent $250,000 in support of Justice Newby—AFP’s largest judicial advocacy effort ever.4
In Wisconsin, a turbulent 2011 state Supreme Court race saw an infusion of almost $1.4 million by the progressive Greater Wisconsin Committee, which bankrolled an aggressive series of TV ads targeting incumbent Justice David Prosser. On the other side, groups with conservative or business ties collectively spent approximately $2.2 million in support of Justice Prosser or in opposition to challenger JoAnne Kloppenburg.
While the growing role of independent spending by unaccountable interest groups raises concerns in both judicial and non-judicial races, it is particularly worrisome in the judicial context, where judges are constitutionally obliged to ensure impartial justice for all who appear before them.
With lax disclosure requirements in many states, more independent spending means less transparency as to who is spending—and potentially seeking to buy case outcomes—in judicial races. Independent spending also leads to more negativity, as outside groups frequently resort to outrageous attacks and misleading accusations. Independent spending by political parties raises similar concerns. Parties often serve as conduits for special interest money and influence, and like outside groups, parties utilize negative ads more often than judicial candidates.
Perhaps most disturbing of all, however, is that while independent spending on state court races ballooned in 2011–12, it still has room to grow. Even though outside groups and political parties were responsible for more than 40 percent of all spending in 2011–12, their spending was documented in only 11 states, while in 12 states only candidate spending was documented.
This disconnect underscores just how high non-candidate spending was in the 11 states that experienced it, with five states seeing more than $1 million in independent spending by outside groups and parties. At the same time, it also suggests an untapped market for outside dollars—future years may see an even greater expansion in independent spending by interest groups and parties in judicial races.
What is a Super PAC?
Super PACs, which emerged as an indirect side effect of Citizens United can accept and spend unlimited contributions from corporations and other donors, as long as they do not coordinate with candidates or give them direct contributions.
Spending Highest on Divided Courts
The most expensive high-court elections in 2011–12 occurred in four states where courts remain closely divided by judicial philosophy and, in the cases of states with partisan elections, political party: Michigan, Wisconsin, Florida, and North Carolina. Deep-pocketed parties and interest groups overshadowed the candidates’ budgets in these four states, pouring in millions of dollars in independent spending. Nationally, 12 states saw judicial election spending top $1 million in 2011–12.
In Michigan, a 4-3 conservative majority was at stake with three state Supreme Court seats up for election in 2012. Michigan easily led the nation in overall spending in 2011–12, with estimates ranging from $13 million to $18.9 million, depending on how television costs are approximated. Independent spending by parties and interest groups was an estimated $9.6 million to $15.5 million.* The Court maintained its 4-3 conservative majority after voters elected Republican Brian Zahra for a partial term and Republican Stephen Markman and Democrat Bridget McCormack for full eight-year terms.
* The different Michigan totals represent differences in two methods of estimating total television spending. The higher estimate, from the Michigan Campaign Finance Network, is based on MCFN’s examination of records of TV stations across Michigan that logged ads aired in the high court race. The lower estimate, by Kantar Media/CMAG, is based on an analysis of ads monitored by satellite technology, and does not include some local cable TV ads. All charts and tables rely on the Kantar Media/CMAG data. See Chapter 2, note 1 for a further description of the Kantar Media/CMAG methodology.
Political parties dominated spending in Michigan’s races, reflecting the heated battle over the court’s composition. Although party affiliation does not appear on the ballot for high court candidates in Michigan, the state Democratic and Republican parties select candidates and campaign actively on their behalf, relying heavily on attack ads. The Democratic Party spent an estimated $4.8 million to $6.8 million and the Republican Party spent an estimated $3.5 million to $7 million, nearly all on TV ads, making them the two highest spenders nationally. Each party spent more than the six high court candidates combined ($3.4 million).
The conservative Washington, D.C.-based Judicial Crisis Network also sought to influence Michigan’s race. It spent an estimated $600,000 to $1 million on an attack ad against Bridget McCormack, making it the ninth highest spender nationally.
Nationally, 12 states saw judicial election spending top $1 million in 2011-12.
Although estimates put Michigan first in the nation in spending in 2011–12, the vast majority of these expenditures were never disclosed in campaign finance filings due to Michigan’s narrow definition of what triggers a disclosure requirement. A report by a campaign finance watchdog group, the Michigan Campaign Finance Network, called the race “the most espensive and least transparent in state history.”5
|STATE||CANDIDATE FUNDRAISING ***||PUBLIC FUNDS||INDEPENDENT EXPENDITURES BY POLITICAL PARTIES||INDEPENDENT EXPENDITURES BY INTEREST GROUPS||TOTALS|
|Wisconsin ** †||$563,269||$800,000||$0||$3,737,748||$5,101,017|
*This chart estimates spending on high court races, including competitive and retention elections, in the 23 states in which spending was documented. Candidate fundraising and public funding figures were provided by the National Institute on Money in State Politics. Independent expenditures by political parties and interest groups reflect television spending estimates by Kantar Media/CMAG. In Florida, Illinois, Iowa, Michigan, Montana, North Carolina, and Wisconsin, additional information on independent expenditures by parties and interest groups was obtained through campaign finance filings and other verified reports, as detailed in the notations for each state. This additional data was added to spending totals to the extent it did not duplicate television spending estimates by Kantar Media/CMAG.
** 2011 election
*** Candidate fundraising includes contributions and self-financing by candidates. It excludes fundraising by judges that did not run for election in 2011-12.
† Independent expenditures reflect estimated spending on television ad time, as provided by Kantar Media/CMAG, and data from the following sources: Michigan: Michigan Campaign Finance Network, Michigan Supreme Court Campaign Finance Summary 2012 (excluding estimated television spending); Wisconsin: campaign finance filings provided to the Wisconsin Campaign Finance Information System; Florida: IRS filings by Restore Justice, as documented by opensecrets.org, public statements made by the Florida director of Americans for Prosperity; North Carolina: campaign finance filings provided to the North Carolina State Board of Elections (excluding television spending), press release by Americans for Prosperity; Illinois: independent expenditures tracked by the National Institute on Money in State Politics; Iowa: campaign finance filings provided to the Iowa Ethics & Campaign Disclosure Board (including television spending reported in excess of estimates provided by Kantar Media/CMAG); Montana: spending reported by the Center for Public Integrity. Additional documentation on file with the Brennan Center for Justice.
The second most expensive state was neighboring Wisconsin, where a 4–3 conservative majority was on the line in a race for a single seat in 2011. The race was followed nationally and effectively became a referendum on Republican Governor Scott Walker’s initiative to end collective bargaining for most public workers. The election took place as the state Supreme Court was poised to rule on a challenge to Walker’s initiative, and total spending on the race reached more than $5.1 million. The Court’s ideological balance remained intact when incumbent Justice David Prosser, a former Republican legislator, narrowly defeated challenger JoAnne Kloppenburg after a recount.
Candidate spending in Wisconsin was overshadowed by spending by progressive and conservative outside groups, which poured more than $3.7 million into the race. Three of the groups bankrolling the 2011 race were among the 10 highest spenders nationwide: the labor-friendly Greater Wisconsin Committee, which spent an estimated $1.4 million; the pro-business Issues Mobilization Council of Wisconsin Manufacturers & Commerce, which spent an estimated $900,000; and the conservative Citizens for a Strong America, which spent an estimated $800,000. The candidates raised a combined $563,000 (including fundraising by primary candidates) and drew on $800,000 in public financing.
Florida ranked third among states for overall spending in 2011–12, with total spending reaching nearly $5 million. Unlike Michigan and Wisconsin, Florida is a merit selection state with retention elections, rather than a contested election state, giving the governor the power to appoint a new judge in the event a sitting justice loses his or her seat. With three justices facing retention in 2012, two of whom were appointed by a Democratic governor and one who was jointly appointed by a Democrat and a Republican, the political stakes were high. Special-interest groups on one side sought to unseat the justices and give Republican Governor Rick Scott three new appointments (which would ensure that all seven Florida Supreme Court justices were appointed by Republican governors).
Although the justices were targeted in an anti-retention campaign by a tea party-linked group, Restore Justice 2012, as well as by Americans for Prosperity and the Republican Party of Florida, most of the spending in Florida’s retention race came from the candidates themselves and pro-retention outside groups. Pro-retention group Defend Justice from Politics, which received funding from law firms and progressive advocacy groups, spent an estimated $3.1 million during the campaign season, ranking third in the nation among spenders in 2011–12. The justices’ campaigns collectively raised more than $1.5 million. By contrast, from 2000-2010, only $7,500 was raised by Florida Supreme Court justices, all in 2000.
Ultimately, the voters retained all three justices.
In North Carolina, a 4-3 conservative majority was on the line in 2012 when incumbent Justice Paul Newby faced off against Court of Appeals Judge Sam Ervin IV. Estimated spending surpassed $4.4 million, shattering state records for judicial elections.
Driving this election spending was the newly created North Carolina Judicial Coalition, a conservative Super PAC that spent an estimated $2.9 million in TV advertisements promoting Newby and ranked as the fourth highest spender nationally in 2011–12. Independent spending on behalf of Ervin came mainly from a group called N.C. Citizens for Protecting Our Schools and totaled some $270,000. The candidates raised a combined $173,011 and benefitted from $480,020 in public financing. When voters reelected Justice Newby, the 4-3 conservative split remained the same.
National Politics Invades State Judicial Races
State Supreme Court elections have been caught up in national political trends for more than a decade, but never more conspicuously than in 2011–12.
Wedge political issues were injected into several races, with TV ads referencing marriage for same-sex couples in Iowa, the federal Affordable Care Act in Florida, and collective bargaining in Wisconsin—all issues that had appeared or were likely to appear before each state’s high court.
Numerous groups more commonly associated with national politics and presidential and legislative races also weighed in on state judicial races, as did national groups focused on the courts.
Americans for Prosperity was one national organization that put new focus on judicial races. AFP spent $250,000 on direct mailings in support of incumbent Justice Paul Newby in North Carolina, which it described as its “largest judicial issue advocacy effort ever.”6 The mailing praised Justice Newby for upholding the rights of taxpayers to sue the government over misuse of taxpayer dollars. AFP also put $155,000 toward television ads and other advocacy to oppose the retention of three state Supreme Court justices on the ballot in Florida.7 Koch Industries, the Wichita-based company owned by the conservative billionaire brothers Charles and David Koch, likewise contributed to Republican judicial candidates in Louisiana and Texas.
Other, mostly conservative, national groups opened their pocketbooks as well, including:
- The Washington, D.C.-based Judicial Crisis Network, a conservative group focused on the courts, which spent an estimated $600,000 to $1 million in Michigan on television ad air time opposing a Democratic candidate;
- The NRA-linked Law Enforcement Alliance of America, which spent more than $450,000 in Mississippi to air an attack ad against a candidate who had been a plaintiff-side trial lawyer;
- The American Future Fund, a conservative free-market organization that spent $126,000 on television ad air time in Louisiana in support of primary candidate Bill Morvant;
- The National Organization for Marriage, a conservative group that spent more than $130,000 in Iowa on television ads opposing the retention of Iowa Supreme Court Justice David Wiggins,8 who had participated in a unanimous decision determining that the Iowa Constitution’s Equal Protection Clause did not allow the denial of marriage for same-sex couples; and
- Wisconsin Manufacturers & Commerce, an official state ally of the U.S. Chamber of Commerce, which spent an estimated $900,000 to air a series of ads supporting incumbent Justice David Prosser and attacking challenger JoAnne Kloppenburg as weak on crime.
In addition to spending directly on high court races, some national groups sought to influence races by contributing to state-level organizations. Several of these were progressive organizations:
- America Votes, a progressive advocacy organization, contributed $300,000 to the Florida pro-retention group Defend Justice from Politics, which spent more than $3 million on ads supporting the retention of three Florida justices;
- The Human Rights Campaign, the largest national LGBT advocacy organization, contributed $135,000 to Justice Not Politics Action in Iowa, in addition to some $5,000 it spent under its own name in the battle to retain Justice David Wiggins; and
- The National Education Association weighed in on North Carolina’s high court race, contributing $180,000 to North Carolina Citizens for Protecting Our Schools, which funded mailings and phone calls in support of the challenger in the race, Judge Sam Ervin IV.
Similarly, the Republican State Leadership Committee contributed $1.2 million to Justice for All N.C., a PAC that funded an attack ad in the North Carolina Supreme Court race. Justice for All N.C. also contributed to the North Carolina Judicial Coalition, a Super PAC that led the state in overall spending in the high court race. In Mississippi, the Improve Mississippi PAC received donations from the Washington, D.C.-based American Tort Reform Association, in addition to receiving donations from a number of local groups.
Hollywood Weighs In
The 2011–12 cycle saw a unique development, as Hollywood waded into a judicial race in Michigan. Famous television actors who starred in the long-running series “The West Wing,” featuring a fictional Democrat as president and his loyal Democratic staff, jumped in to make a judicial election ad that went viral, with more than 1 million views on YouTube. There were two versions of the ad, which were made in Michigan on a pro bono basis by the show’s cast.
Finally, national politicians also entered the fray. In Iowa, Louisiana Governor Bobby Jindal and former U.S. Senator Rick Santorum of Pennsylvania—both talked about as potential Republican presidential candidates in 2016—made public appearances to bolster a drive to unseat Justice Wiggins. Santorum assailed “appointed judges [who] continuously legislate from the bench,” while Jindal said some judges “actually make the replacement refs in the NFL look like geniuses.”9
New Super Spenders Gain Prominence
Since 1999, fewer than two dozen groups have been responsible for nearly $1 of every $4 contributed to a Supreme Court candidate or spent independently on TV ads and other electioneering.
|SOURCE||INDEPENDENT EXPENDITURES||CONTRIBUTIONS TO CANDIDATES||TOTAL|
|Michigan Democratic Party||$4,822,418||$135,254||$4,957,672|
|Michigan Republican Party||$3,548,551||$175,847||$3,724,398|
|Defend Justice From Politics (Florida)||$3,108,190||$0||$3,108,190|
|North Carolina Judicial Coalition||$2,888,440||$0||$2,888,440|
|Greater Wisconsin Committee||$1,365,340||$0||$1,365,340|
|WMC Issues Mobilization Council (Wisconsin)||$910,970||$0||$910,970|
|Citizens for a Strong America (Wisconsin)||$836,090||$0||$836,090|
|Improve Mississippi PAC||$626,310||$0||$626,310|
|Judicial Crisis Network (D.C./Michigan)*||$614,370||$0||$614,370|
|Ohio Republican Party||$250,840||$267,511||$518,351|
A small number of “super spenders” continued to dominate high court races in 2011–12, with the top 10 spenders pumping $19.6 million into judicial races, representing 35 percent of all candidate contributions and independent expenditures. Spending was even more concentrated in 2011–12 than during the last presidential election cycle, when the top 10 spenders were responsible for 21 percent of all candidate contributions and independent spending.
Many of the top spenders represented opposing sides in the tort wars, pitting corporate interests and their lawyers on one side (typically supporting Republican candidates) and plaintiffs and their trial lawyers on the other (typically supporting Democrats). In 2011–12, the single highest-spending group was the Michigan Democratic Party. Business and conservative groups proved the dominant force overall, however, accounting for seven of the top 10 spenders in 2011–12.
At the same time, other newly competitive states saw spending skyrocket — and with it, the emergence of new super spenders. The Florida group Defend Justice from Politics burst onto the scene in 2012, spending more than $3 million in TV ads in 2012 to support the retention of three justices. Funded principally by lawyers, the group condemned the anti-retention campaign as a “‘hijack’ of our justice system.” Another new super spender in 2012 was the Super PAC North Carolina Judicial Coalition, funded largely by business and conservative interests, which spent more than $2.8 million in ads supporting conservative incumbent Justice Newby.
Special Interests Dominate Candidate Contributions
Nationwide, high court candidates raised $32.3 million in 2011–12, including $1.6 million in public financing in Wisconsin, North Carolina, and West Virginia, and $3.6 million in candidate self-funding. This fundraising figure represents a significant decline from the 2007-08 presidential election cycle, when judicial candidates raised $44.3 million, reflecting a sharp shift from candidate contributions toward independent spending by interest groups and parties.
In a 2011 national poll of 1,000 voters, 93 percent said judges should not hear cases involving major financial supporters, and 83 percent said that campaign contributions have at least some influence on a judge’s decisions. Regarding disclosure, 84 percent said all contributions to a judicial candidate should be “quickly disclosed and posted to a web site.”
While overall resources shifted away from candidate contributions and toward independent expenditures in 2011–12, contributions continued to follow historical patterns. As in past years, direct contributions to candidates were dominated by lawyers, lobbyists, and business interests—the parties who are likely to appear before state high courts, and those who represent them. Of the $30.7 million received by candidates in contributions, lawyers and lobbyists donated more than $10.1 million, while more than $7.1 million derived from business or corporate interests. Political parties provided nearly $900,000.
Big spending on judicial campaigns troubles a majority of Americans, who believe that campaign cash tilts the scales of justice. In a 2011 national poll of 1,000 voters, 93 percent said judges should not hear cases involving major financial supporters, and 83 percent said that campaign contributions have at least some influence on a judge’s decisions. Regarding disclosure, 84 percent said all contributions to a judicial candidate should be “quickly disclosed and posted to a web site.”10
Chapter 1 Notes
- Citizens United v. FEC, 558 U.S. 310, 365 (2010).
- Inflation-adjusted terms calculated using the inflation calculator at http://www.westegg.com/inflation/, converting the numbers to 2012 dollars.
- See National Conference of State Legislatures, Life After Citizens United (Jan. 4, 2011), available at http://www.ncsl.org/….
- Press Release, Americans for Prosperity, Americans for Prosperity Launches $250,000 Direct Mail Issue Advocacy Effort (Oct. 30, 2012), available at http://www.prweb.com/….
- Michigan Campaign Finance Network, Descending into Dark Money: A Citizen’s Guide to Michigan Campaign Finance 2012, at 31 (2013), available at http://www.mcfn.org/….
- Press Release, supra note 4.
- Mary Ellen Klas, Campaign for Justices is on Track to Spend $5.5 Million, Tampa Bay Times, Nov. 1, 2012, http://www.tampabay.com/….
- This figure is based on the National Organization for Marriage’s filings with the Iowa Ethics & Campaign Disclosure Board. Kantar Media/CMAG’s estimates for television ad spending, which are reflected in the state and national totals provided in the tables and appendix, provides a lower figure ($86,020). The CMAG estimate is likely lower than the National Organization for Marriage’s self-reported data because CMAG’s estimate excludes ad agency commissions, the costs of producing advertisements, and ad purchases limited to local cable channels.
- Rod Boshart, Santorum, Jindal Join Effort to Oust an Iowa Supreme Court Justice, Waterloo-Cedar Falls Courier, Sept. 18, 2012, http://wcfcourier.com/….
- 20/20 Insight LLC, National Registered Voters Frequency Questionnaire 2-4 (2011), available at http://www.justiceatstake.org/….