Court TV: Record Spending on Television Ads
Spending on television advertisements in state Supreme Court races hit record levels in 2011–12. Since 2000, growing reliance on TV ads has transformed judicial races, pushing up costs and all too often injecting negativity and politics into previously civil contests.
In 2012, according to estimates based on satellite capture of advertising in major TV markets, more than $29.7 million was spent on TV ads in 16 states, topping the previous single-year record of $24.4 million in 2004 ($29.3 million in inflation-adjusted terms).1 When Wisconsin’s contentious 2011 race is included, TV spending for the 2011–12 cycle reached an estimated $33.7 million, far exceeding the previous 2007-2008 record $26.6 million ($28.5 million in inflation-adjusted terms).2 Eleven states saw high court races exceed $1 million in TV air time spending in the 2011–12 cycle.
Expensive ad time helped drive this skyrocketing spending. As compared to 2008, races in 2012 saw $8.5 million more in TV spending ($29.7 million as compared to $19.9 million, or $21.2 million in inflation-adjusted terms) but 7,000 fewer ad spots (51,328 as compared to 58,879). The unprecedented election spending brought on by Citizens United was one contributing factor: as campaign ads flooded the airwaves and pushed up prices, advertisers in judicial races were forced to dig deeper into their pockets.
Michigan led the nation in overall TV spending, with an ad war by political parties and outside groups that turned increasingly negative, including ads that described a candidate as having “volunteer[ed] to help free a terrorist.” Estimated TV spending ranged from $8.9 million to more than $13.8 million, the highest in state history. (The lower estimate comes from Kantar Media/CMAG and is based on an analysis of TV ads monitored by satellite technology. The higher estimate is from the Michigan Campaign Finance Network, and is based on an examination of TV station records.) Michigan also led the nation in total ad spots, with 15,532.
For the first time since tracking of campaign ads began in 2000, ads supporting embattled incumbent justices facing retention challenges also hit the airwaves. Florida’s Defend Justice from Politics spent an estimated $3.1 million to air a TV ad urging voters to reject a “political power grab” and vote to retain three sitting justices. And Oklahoma’s Yes for Fair and Impartial Judges spent more than $450,000 in 2012 airing an ad highlighting bipartisan support for the four justices facing retention votes and calling on voters to “keep politics out of the Oklahoma Supreme Court.”
Television spending during the primary season also reached new heights, with nearly $7 million spent in the 2011–12 cycle, including over $6 million in 2012 alone. Four states, Alabama, Texas, Illinois, and Louisiana, had $1 million or more of spending on airtime during the 2012 primaries.
Special-Interest Groups and Parties Lead TV Spending
Consistent with overall spending patterns, special-interest groups and political parties dominated television ad spending in 2011–12, making up four of the top five and seven of the top 10 TV spenders. Special-interest groups were responsible for 38 percent of total TV spending, while political parties were responsible for 24 percent. Together, non-candidates spent an estimated $20.7 million on TV air time, a whopping 61 percent of total TV spending. In contrast, total non-candidate spending was only 47.5 percent of total TV spending in 2007-2008.
|State||Sponsor||Spot Count||Est. Spending|
|31,122 spots for $12,972,330||14,762 spots for $7,947,880||16,326 spots for $12,738,080|
Michigan, which led the nation in TV spending, saw the highest number of non-candidate ads, mostly from political parties weighing in on the three-seat race. Michigan’s ad war cost an estimated $8.8 million to $13.8 million, of which $7.7 million to $12.9 million came from the state Democratic and Republican parties.
Wisconsin, which came in second overall in TV spending, saw the most TV spending by special-interest groups. Overall, interest groups spent an estimated $3.6 million on TV ads in Wisconsin during its hotly contested 2011 election for a single Supreme Court seat. The progressive Greater Wisconsin Committee spent nearly $1.4 million in support of challenger JoAnne Kloppenburg. At the same time, conservative groups Wisconsin Manufacturers & Commerce, Citizens for a Strong America, Wisconsin Club for Growth, and the Wisconsin Tea Party Express spent a combined $2.2 million, all in support of incumbent Justice David Prosser.
Continuing a trend that gathered steam in 2010, interest groups also set their sights on traditionally low-cost retention elections, as well as putting huge sums into races in nonpartisan election states. Ninety percent of all TV spending by special-interest groups (excluding political parties) took place in only six states—the retention races in Florida, Oklahoma, and Iowa, as well as the nonpartisan competitive elections in Mississippi, North Carolina, and Wisconsin.
|Spender||State||Spot Count||Est. Spending|
|Michigan Democratic State Central Committee||Michigan||9,483||$4,198,810|
|Michigan Republican Party||Michigan||4,639||$3,498,230|
|Defend Justice from Politics||Florida||2,140||$3,108,190|
|North Carolina Judicial Coalition||North Carolina||2,491||$2,888,440|
|Greater Wisconsin Committee||Wisconsin||3,187||$1,365,340|
|Theis, Mary Jane||Illinois||911||$1,198,590|
|WMC Issues Mobilization Council||Wisconsin||2,203||$910,970|
|Citizens for a Strong America||Wisconsin||2,067||$836,090|
Ad Tone and Negativity
Overall negativity in TV ads was lower in 2011–12 than in recent elections, but in many states, attack ads still substituted for meaningful discussion of candidates’ credentials. Ten of the 17 states with TV ads in 2011–12 had at least one negative advertisement, defined as either an attack or contrast ad, and in Iowa, Kentucky, Illinois, Mississippi, Ohio, Michigan, and Wisconsin more than 20 percent of total TV ad spots were negative in tone.
In states that saw negative ads, fear-mongering and name-calling were prevalent.3
In Michigan, for example, an ad by the Republican Party described candidate Shelia Johnson as a “judicial activist,” an ad by the Democratic Party described candidate Colleen O’Brien as having “worked to deny benefits to a cancer patient,” an ad by the Republican Party described Bridget McCormack as having “fought to protect sexual predators,” and an ad by the Democratic Party suggested that “unlike some judges,” the Democratic candidates “have zero tolerance for violence against women and kids.”
“Based on the commercials you wouldn’t vote for any of the six [Michigan Supreme Court candidates] even if they were running for dog catcher. You’d be afraid they would abuse the dogs.”
—Op-ed by political consultant Tim Skubick4
In Wisconsin, ads by the progressive Greater Wisconsin Committee accused incumbent Justice David Prosser of covering up molestation by a priest instead of prosecuting him when Prosser was a district attorney. Justice Prosser called the ad about a 33-year-old case “sleazy” and said it was false, and the victim in the case asked for it to be pulled.5 Another ad described Justice Prosser as a “rubber stamp” for Governor Scott Walker. On the other side, an ad by the state Tea Party Express asserted that “big union bosses want [challenger JoAnne] Kloppenburg” because she is “an activist judge they can control,” while an ad by Wisconsin Manufacturers & Commerce described Kloppenburg as “weak on criminals.”
In Ohio, a state Republican Party ad accused Supreme Court candidate Bill O’Neill of being “sympathetic to rapists,” based on a decision he made as an appeals judge overturning a rape conviction due to ineffective assistance of counsel. The Ohio State Bar Association described the ad as misleading and stated that it “impugn[s] the integrity both of a candidate and of the court, and impl[ies] that justice is for sale.”6 Republican candidate Justice Robert Cupp distanced himself from the ad, stating through his campaign committee that “he has not and would not approve a commercial like this.”7
Significantly, some of the most negative ads did not yield the desired results. Despite being subject to some of the nastiest ads of 2011–12, McCormack, Prosser, and O’Neill each won their respective races.
As in previous years, ads from non-candidate groups were more likely to be negative in tone than candidate ads, while candidates typically relied on traditional positive ads that promoted their backgrounds and accomplishments. In 2012, 26 percent of ad spots by outside groups and 21 percent of ad spots by political parties were negative, compared with 12 percent of ad spots by candidates. In 2011, Wisconsin’s race saw outside groups particularly on the attack: nearly 75 percent of all ad spots by outside groups were negative in tone, while no candidate released a negative advertisement. Overall, more than half of all ad spots by outside groups in 2011–12 were negative in tone.
Breaking with history, nonpartisan races in 2011–12 saw a higher percentage of negative ads than partisan races (40 percent as compared to 16 percent), stemming in large part from the surge of negative ads in nonpartisan Kentucky, Mississippi, and Wisconsin. Despite rancorous ads in several states, however, the most common ads in 2011–12 struck a positive note, praising a candidate’s ethical standards (26 percent of all ad spots) or discussing a candidate’s history, education, family, or experience (17 percent of all ad spots).
Finally, in what may be a reflection of the heightened sensitivity to the politicization of judicial races around the country, 16 percent of all ad spots in 2011–12 discussed special-interest influence, either asserting that a candidate was not swayed by special interests or accusing a candidate or court of being captured by special interests.
Beyond Television: Internet and Social Media Arrive in High Court Campaigns
The record spending on TV ads in 2011–12 is just the latest confirmation that reliance on television advertising is here to stay as a virtual prerequisite to gaining electoral victory in many state high court races. But with social media and internet advertisements offering lower-cost options to candidates and groups seeking to reach a wide audience, high tech alternatives to TV took on growing importance in 2011–12.
Several Supreme Court campaigns took to the internet and social media to spread their messages. Florida’s Defend Justice from Politics, for example, maintained an active Facebook page and Twitter account linking to articles about the Florida retention races and encouraging Floridians to vote.
Candidates in Florida and Michigan used YouTube to disseminate advertisements that did not make it onto TV, and candidates, parties, and groups also regularly posted copies of TV ads online. In Iowa, pro- and anti-retention groups released Internet-only ads trading barbs about keeping politics out of the courtroom and avoiding “activist” judges. In one particularly notable pro-retention ad by Progress Iowa, a reformed member of a hate group drew a connection between hate groups and the conservative political organization The Family Leader, headed by activist Bob Vander Plaats, which campaigned against retention. Stating “I know hate,” he argued that groups like The Family Leader “only believe in equality for people like them.”
Another notable Internet-only ad by Democratic Michigan Supreme Court candidate Bridget McCormack featured stars from the popular television series “The West Wing” (McCormack’s sister was a cast member on the show). The four-minute ad doubled as a public service announcement, encouraging voters not to skip the nonpartisan races at the bottom of their ballots when they vote. It garnered more than 1 million views on YouTube.
McCormack also relied on Facebook to support her campaign. Roughly half of her ad budget went to Facebook ads, according to her campaign manager, who credited Facebook with delivering her the margin of victory.8
Texas Supreme Court Justice Don Willett likewise turned to Twitter as part of his reelection strategy. In an interview with the Texas Lawyer—conducted by tweets, naturally—Willett said he took to Twitter “About 3 yrs ago, mostly b/c of re-election. Voters increasingly consume info online, esp political info. & cands must harness s-m [social media] potency.” In another 140-character burst he added that “For me it’s mainly a political comm medium 2 stay connected, a byproduct of elected judges.”9
Chapter 2 Notes
- All data on ad airings and spending on ads are calculated and prepared for the Brennan Center for Justice by Kantar Media/CMAG, which captures satellite data in the nation’s largest media markets. CMAG’s calculations do not reflect ad agency commissions, the costs of producing advertisements, or ad purchases limited to local cable channels. The costs reported here, therefore, generally understate actual expenditures and should be considered conservative estimates of actual TV spending. These estimates are useful principally for purposes of comparing relative spending levels across states, and across time.
- Inflation-adjusted terms calculated using the inflation calculator at http://www.westegg.com/inflation/, converting the numbers to 2012 dollars.
- Storyboards and copies of all ads are available on the Brennan Center’s website, at Buying Time 2011, http://www.brennancenter.org/…, and Buying Time 2012, http://www.brennancenter.org/….
- Tim Skubick, Op-Ed., Michigan Supreme Court Candidates Should Be Appointed, Not Elected, WJBK (Michigan), Oct. 26, 2012, http://wftc.membercenter.worldnow.com/….
- Larry Sandler, Blog, Priest’s Victim Backs Prosser in New Ad, Milwaukee Journal Sentinel, Apr. 1, 2011, http://www.jsonline.com/…; Becky DeVries, Victim Upset with New Supreme Court Ad, Green Bay Fox 11, Mar. 25, 2011, http://www.fox11online.com/….
- Letter from Maxine Thomas, Chair, Ohio State Bar Association, to William O’Neill, Ohio Supreme Court Candidate (Nov. 3, 2012), available at https://www.ohiobar.org/….
- Kate Irby, Ohio GOP Puts Out Ad Depicting Ohio Supreme Court Candidate as Sympathetic to Rapists, cleveland.com, Oct. 25, 2012, http://www.cleveland.com/….
- Cotton Delo, McCormack Campaign: Facebook Ads Provided Victory Margin in State Supreme Court Election, Crain’s Detroit Business, Dec. 5, 2012, http://www.crainsdetroit.com/….
- Angela Morris, Blog, Texas Supreme Court Justice Don Willet: Master of the Twitterverse, Tex Parte Blog, Jan. 30, 2013, http://texaslawyer.typepad.com/….