Big spenders and interest groups dominated state Supreme Court elections this cycle. Outside spending by interest groups (excluding political parties) as a share of total spending hit an all-time high in 2013-14, constituting 29 percent of all dollars spent in state Supreme Court elections and topping the previous record of 27 percent in 2011–12. Million-dollar elections were seen in eight states, and new spending records were set in three.
High-profile retention elections also served as battlegrounds for interest groups, continuing a trend first seen in 2010. At the same time, states that choose their justices via contested elections saw an unusually high number of uncontested seats this cycle, raising a question as to why so many races were unopposed and contributing to lower aggregate spending nationwide.
Million-Dollar Elections in Eight States
Total spending on state Supreme Court elections exceeded $34.5 million this cycle, with documented spending in 40 races across 18 states. 1
While high court election spending is typically small compared to other statewide races, such small expenditures can nonetheless make a big impact on the composition of a court. Voters in state Supreme Court races typically have little to no information on which to base their decisions at the ballot box, and voters tend to drop off when faced with down-ballot, judicial races. As a result, even small expenditures on campaign ads and literature can move the needle in these low-information contests. Electoral success is also correlated with the size of a candidate’s (or his or her supporters’) wallet. For example, of the 23 contested seats in this election cycle, 21 were won by the candidate whose campaign raised the most money—a success rate of over 90 percent. 2
State Supreme Court election spending is historically lower in non-presidential cycles. But total spending this cycle was also lower when compared to other recent non-presidential cycles ($38.1 million in 2009-10 and $42.9 million in 2005–06), due to an unusually high number of unopposed races. (See “Number of Unopposed Elections Rises” for more analysis.) Many states nevertheless saw heavy spending in state Supreme Court contests, with spending trends in the most expensive races similar to patterns in other recent cycles.
Let’s look at the most expensive elections. Eight states saw more than $1 million spent on state Supreme Court races in 2013-14, with Michigan leading the nation with more than $9.5 million in spending over three races. 3 An average of at least $1 million per seat was spent in five states—Michigan, North Carolina, Illinois, Ohio, and Wisconsin—and average spending per seat topped $3 million in Illinois and Michigan. Similarly, in 2009-10, six states saw more than $1 million spent per seat on average (and two had more than $3 million spent per seat). Back in 2005–06, only four states saw more than $1 million spent per seat on average, and none had more than $3 million spent per seat.
|State||Candidate Fundraising**||Outside Spending by Political Parties||Outside Spending by Special Interest Groups||Total Number of Seats||Totals|
* 2013 election.
** Candidate fundraising includes contributions and self-financing by candidates. It excludes fundraising by judges that did not run for election in 2013-14. All candidate fundraising information was gathered from FollowTheMoney.org on June 9, 2015. Information is current as of that date.
† Independent expenditures reflect estimated spending on television ad time, as provided by Kantar Media/CMAG, and data from the following sources: Illinois: Illinois State Board of Elections Division of Campaign Disclosure (excluding estimated television spending); Michigan: Michigan Secretary of State Campaign Finance Disclosure (excluding estimated television spending); Montana: Montana Commissioner of Political Practices Report Search (excluding estimated television spending); North Carolina: North Carolina State Board of Elections Campaign Finance Report Search (excluding television spending); Tennessee: Tennessee Registry of Election Finance Report Search (excluding estimated television spending); Wisconsin: Wisconsin Campaign Finance Information System (excluding estimated television spending), Wisconsin Democracy Campaign.
Spending Records Fall in Three States
Three states set spending records this cycle, as North Carolina and Montana had record spending in their nonpartisan contested elections, and Tennessee saw record spending in its retention election.
In North Carolina, which held its first judicial elections without public financing since 2002, those seeking to shape the courts pumped over $6 million into races for four seats on the state’s seven-member high court. (See “State in Focus: North Carolina.”) At the time of the election, the court had five justices with Republican ties (the state’s election itself is nonpartisan, meaning that party labels do not appear on the ballot). 4 With the two justices with Democratic ties up for reelection, these contests had the potential to give Republicans complete control of their state’s highest court and attracted substantial spending from both sides of the aisle.
Without the state’s highly-regarded public financing system—under which taxpayer money helped cover the cost of judicial campaigns and thus reduced the influence of wealthy contributors—the candidates were forced to turn to lawyers and lobbyists for campaign support. These donors made up over 40 percent of all candidate contributions. Though lawyers and lobbyists collectively put the most money into the four races, interest groups also spent heavily. The Republican State Leadership Committee (RSLC) proved to be the biggest single source of election funds in the state, giving $1.3 million to a local group called Justice for All NC, which ran a high-profile TV ad claiming that a sitting justice had “sided with [child] predators.” Ultimately, three of the four incumbent justices held on to their seats, leaving the court with a 4–3 Republican majority. 5 This was the second consecutive North Carolina Supreme Court election to attract seven-figure spending; in 2012, the state saw $4.5 million spent on a single seat, despite both candidates having opted into the state’s public financing system.
In Montana, 6 two seats were up in the state’s nonpartisan state Supreme Court election—one held by a justice with Democratic ties, Mike Wheat, and one held by a justice with Republican ties, Jim Rice—on a court considered to lean 5-2 Democratic. The overwhelming majority of spending was concentrated on Wheat’s seat, as national groups including the RSLC and Americans for Prosperity poured nearly $550,000 into efforts to replace him. Trial lawyers and labor unions came to the justice’s defense, supporting the group Montanans for Liberty and Justice—whose TV ads attacked his opponent, Lawrence VanDyke, as being in the pocket of out-of-state special interests. Montanans for Liberty and Justice spent $520,000 in ads and mailers, helping to bring total independent expenditures to over $1.1 million and total election spending to over $1.5 million. Both Wheat and Rice ultimately held onto their seats; despite the spending war, Wheat was reelected by more than a 20-point margin.
“Why would a person want to give up their legal career to go out and campaign … you’re going to have to [go] out and campaign for a long time, to counter the money, and it’s going to get ugly and it’s going to get dirty… Why would people want to do that?” 7
—Montana Supreme Court Justice Mike Wheat
In Tennessee, which held retention elections in the summer of 2014, three justices appointed by a previous Democratic governor faced an anti-retention campaign led by the state’s Republican Lieutenant Governor, Ron Ramsey. With a slim 3-2 Democratic-appointed majority on the five-member court heading into the retention races, unseating any one of the justices would have handed the Republican governor a new appointment and therefore potentially a new majority. The Tennessee Supreme Court also holds the power to appoint the state’s attorney general and had drawn scrutiny for putting a Democrat in the position. Total on-the-books spending by pro-retention forces clocked in at nearly $1.5 million, while those vying to unseat the three justices spent over $1 million. The race was highly politicized. The justices were falsely characterized in attack ads as having “advanced Obamacare” (they never even heard a case involving it), while airing their own ads touting their record of “upholding nearly 90 percent of death sentences.” The outcome: all three justices narrowly retained their seats. (See “State in Focus: Tennessee—Retention Elections See Unprecedented Partisanship.”)
Outside Spending Played an Unprecedented Role
Historically, campaign contributions were the principal way that money flowed into state Supreme Court elections. In the aftermath of the U.S. Supreme Court’s 2010 decision in Citizens United v. FEC, however, this has started to change. Outside spending—where non-candidates spend money directly on ads and other election materials—is becoming an increasingly important part of the Supreme Court election landscape.
In 2013-14, outside spending by interest groups—including political action committees, social welfare organizations, and other groups—was a record 29 percent of total spending ($10.1 million), compared to 27 percent ($15.4 million) in 2011–12, 16 percent ($6 million) in 2009-10, and 17 percent ($9.5 million) in 2007–08. These groups skewed heavily toward the right: 70 percent of all expenditures by outside groups were spent supporting Republican or conservative candidates.
When spending by political parties is added, outside spending accounted for 40 percent of total spending in 2013-14. This reflects the highest percentage of spending by non-candidates in a non-presidential cycle ever, and falls just short of the all-time record of 42 percent in 2011–12. In contrast, non-candidate spending was 30 percent of total spending in 2009-10 and 22 percent of total spending in 2007–08.
In three states—Tennessee, Illinois, and Montana—outside spending accounted for a majority of all dollars spent on state Supreme Court races. Illinois led the pack with over 90 percent of spending coming from interest groups. Next was Montana, where outside groups spent nearly three out of every four dollars, and then Tennessee, where both national and state organizations weighed in to make outside spending over 54 percent of all money spent.
High levels of outside spending in retention elections in Tennessee and Illinois contributed to the record numbers seen in 2013-14. These record figures also reflect the impact of Citizens United. While the decision ultimately led to the invalidation of restrictions on corporate spending in 21 of the states that hold judicial elections, 8 its greatest impact on state Supreme Court races has been on how money is spent.
The rise of outside spending reflects the creation of new spending infrastructure since Citizens United. Citizens United also led to a cultural shift, toward the normalization of outside campaign spending at levels never before seen. In the context of judicial elections, this is most clearly seen in the activities of so-called social welfare organizations. These organizations are creatures of the U.S. tax code that can weigh in on elections without publicly disclosing their donors. And while some of such spending was legal prior to Citizens United, the decision expanded the ability of organizations to weigh in on elections and contributed to their playing a more prominent role in the election landscape.
The result is heightened secrecy and less accountability. Outside spenders frequently take advantage of weak disclosure laws to shield their donors from public scrutiny. And when organizations with benign-sounding names—whose donors and connections to candidates are unknown to the public—spend substantial sums to influence elections, voters do not know which messages to trust or how—or if—to hold elected judges accountable for mudslinging ads or conflicts of interest.
A Few Big Spenders Dominated
While state court judges rule on cases that affect us all, their campaigns are disproportionately supported by wealthy interests, suggesting that state courts could be less responsive to the interests of ordinary citizens. In 2013-14, the top 10 spenders accounted for nearly 40 percent of all spending nationwide—including candidate contributions and outside spending— which is a proportion similar to percentages seen in other recent cycles. 9 And the top spenders this cycle skewed heavily toward outside spending, as 84 percent of their dollars went toward outside spending rather than to the candidates themselves.
Notably, this spending did not fall evenly on both sides of the political aisle. The highest spenders overwhelmingly supported Republican and conservative candidates. Roughly two-thirds of the money spent by the top 10 spenders went to supporting candidates on the right, and 7 of the top 10 spenders were conservative or business groups or state Republican parties, reflecting patterns seen in previous cycles.
Moneyed interests on the left also spent significantly in a few judicial races. Two of the three biggest spenders of the cycle either supported Democratic candidates or opposed Republican candidates, including the biggest self-funder of the cycle—candidate Richard Bernstein in Michigan, who won a seat on the state’s Supreme Court. Three organizations supported almost entirely by plaintiffs’ attorneys—Campaign for 2016 in Illinois, Tennesseans for Fair Courts, and Montanans for Liberty and Justice—spent nearly $3 million collectively.
|Outside Spending||Contributions to Candidates||Total|
|1. Michigan Republican Party||$3,587,408.54||$295,468.00||$3,882,876.54|
|2. Campaign for 2016 (IL)||$2,064,994.13||$2,064,994.13|
|3. Richard Bernstein (MI)*||$1,846,839.27||$1,846,839.27|
|4. Republican State Leadership Committee (IL, MT, TN)||$1,643,044.04||$1,643,044.04|
|5. Justice for All NC||$1,434,276.24||$1,434,276.24|
|6. The Tennessee Forum||$787,667.59||$787,667.59|
|7. American Freedom Builders (OH)||$596,440.00||$596,440.00|
|8. Montanans for Liberty and Justice||$519,998.29||$519,998.29|
|9. The Center for Individual Freedom (MI)||$468,110.00||$468,110.00|
|10. Michigan Realtors Super PAC/Michigan Association of Realtors||$399,787.00||$15,000.00||$414,787.00|
|Candidate||State||Total Contributions Raised|
|1. Richard Bernstein||MI||$2,247,248.92|
|2. Judith French||OH||$1,120,975.94|
|3. Jeff Brown||TX||$1,108,118.38|
|4. Sharon Kennedy||OH||$1,007,181.84|
|5. Brian Zahra||MI||$953,819.64|
|6. Phil Johnson||TX||$890,385.35|
|7. David Viviano||MI||$887,034.10|
|8. Jeff Boyd||TX||$844,237.14|
|9. Scott Crichton||LA||$777,111.31|
|10. Samuel J. Ervin IV||NC||$685,951.58|
Looking at direct contributions to candidates, in the 18 states with spending in 2013-14, a full 14 states saw donors who gave at least $1,000 make up the majority of total contributions (all but Minnesota, Wisconsin, Washington, and Montana). Worth noting: those who gave $1,000 or more were responsible for at least 95 percent of total contributions in three states—Alabama, 10 Pennsylvania, and Illinois. In Michigan, where 85 percent of the nearly $5 million raised by candidates was provided by those who gave $1,000 or more, just one donor, candidate Richard Bernstein, who contributed to his own successful bid, accounted for 37 percent of total contributions.
|State||Donations of $1,000 or More as a Percent of Total Contributions|
Montana was a notable outlier on this front due to a state law that sets contribution limits to state Supreme Court candidates at $320 per election (primary and general). Candidates raised over 98 percent of their contributions from people donating less than $1,000, with exceptions coming from candidate self-financing. However, the state also saw over $1.1 million in outside spending by deep-pocketed groups such as the RSLC.
Spending Patterns Evolve as Retention Elections Become New Battlegrounds
By many measures, spending patterns for state Supreme Court elections have been relatively consistent over the past 15 years. Of the five states with the most expensive elections in 1999-2000, the first cycle in which the New Politics report tracked state Supreme Court elections (Alabama, Illinois, Michigan, Mississippi, and Ohio), three were also among the top five most expensive elections in 2013-14 (Michigan, Illinois, and Ohio). Of the other two, Mississippi’s high court did not have any seats up for election in 2013-14, while Alabama had an uncontested election for a single seat. Likewise, of the 10 states with the highest spending in 1999-2000, seven were also among the top 10 in 2013-14.
However, these top-spending lists also obscure significant spending shifts over time, most notably the growing politicization of retention elections, which has put new states on the top-spending map. Twenty states use retention elections to determine whether their high court judges will serve on the bench for another term. 11 Historically, retention elections have typically been low-cost and apolitical races (though with some notable exceptions). Since 2010, however, when three Iowa Supreme Court justices were ousted in a targeted campaign over the court’s unanimous decision that denying marriage licenses to same-sex couples violated the equal protection requirements of the state constitution, things have changed. Retention races have increasingly taken on the characteristics of contested elections, complete with special-interest spending, attack ads, and heavy candidate fundraising.
In 2013-14, spending occurred in retention elections in three states (Tennessee, Pennsylvania, and Illinois), totaling nearly $6.5 million. Outside groups accounted for nearly 68 percent of total spending in those elections, compared to 44 percent of total spending in retention elections in 2009-10.
The comparison to previous years is stark: from 2001–08, spending in retention elections averaged $490,000 per cycle. In the past five years, this average skyrocketed to $6.1 million per cycle—a twelvefold increase. In 2013-14, 19 percent of total election spending occurred in retention elections ($6.5 million), compared with 12 percent in 2011–12 ($6.8 million) and 13 percent in 2009-10 ($5.1 million).
Illinois and Tennessee had the most expensive retention elections of 2013-14, making them the fourth and sixth most expensive elections nationally, with Tennessee also setting a state spending record. Kansas also saw a politically-charged retention election for two sitting justices who, among other things, were criticized for a controversial death penalty ruling. Spending information for Kansas is unavailable due to a state disclosure loophole that allowed an anti-retention group to avoid reporting its spending.
On average, retention elections remain less costly than contested elections—in 2013-14, states holding retention elections saw an average of $190,000 spent per seat, compared to $684,000 per seat in states that hold contested elections. Yet average spending per retention race has surged in recent years—from an average of $17,000 per seat between 2001–08 to $178,000 per seat between 2009-14, a tenfold increase.
It’s all a troubling trend. As retention elections come to look more like other elections, judges face new risks of retaliation when they make decisions that anger the public or draw the ire of special interests. Political players have also sought opportunities to influence the makeup of courts by changing the rules. Politicians in Indiana, 12 Arizona, 13 and Kansas 14 introduced bills in 2015 to increase the threshold of votes required for retention from 50 percent to as much as 67 percent. Notably, had such supermajority votes been required for judges to be retained in Kansas, Tennessee, and Illinois in 2014, all six justices in retention elections in those states would have lost their seats.
Number of Unopposed Elections Rises
The 2013-14 cycle also presents a puzzle: why were there so many unopposed state high court races? The number of unopposed races in states that hold contested elections spiked dramatically in 2013-14, driving down total spending this election cycle. 15
Candidates ran unopposed in 18 races in 2013-14, making up 44 percent of all contestable seats. This is the highest number and percentage of unopposed races since 2000. (The previous high was in 2005–06, with 16 unopposed races making up 34 percent of all contestable seats.) In the 10 states with the highest spending in 2009-10, the number of judges running unopposed doubled from two in 2009-10 to four in 2013-14.
Overall spending dropped this cycle as a result. Where multiple candidates vied for state Supreme Court seats, spending averages per race were virtually unchanged from past years ($1.2 million per race in 2013-14, compared with $1.3 million per race in 2009-10, the last non-presidential election cycle). But with fewer judges facing opponents, spending aggregates fell by several million dollars.
Why was there a rise in judges running unopposed for state high courts? Since 2000, the number and percentage of unopposed elections has not shown a clear pattern. Perhaps the 2013-14 figures are simply an anomaly. Also possible is that certain states have begun to see a decline in electoral competition. In Alabama, for example, which led the nation in total candidate fundraising in 2000-09, recent statements by the state Democratic Party Chair suggest that Democrats may have simply given up on contesting state Supreme Court seats in the face of limited resources and a weak political environment, instead prioritizing recruiting candidates for legislative elections and other statewide seats. 16 Is this a statistical fluke, or does it herald a decline in competition in certain states with contested elections? Future cycles will tell. If this trend continues, some previously high-spending states may recede into the background as new battlegrounds emerge.