For more than a decade, state Supreme Court elections have been battlegrounds for special interests seeking to shape the composition of state high courts. Even more troubling, survey data indicates that 87 percent of voters think that contributions to judges influence decisions on the bench 1—and nearly half of state judges agree. 2 This chapter takes a closer look at this dynamic by “following the money”—examining exactly who invested in judicial races and what their ultimate interests might be.
Historically, business interests and conservative groups have typically backed candidates with Republican ties—frequently via powerful national players such as the Chamber of Commerce and the National Association of Manufacturers—while plaintiffs’ lawyers and unions have supported Democrats, generally organizing on the state level and relying on state political parties and PACs as spending conduits.
While these broad patterns continued in 2013-14, some relatively new national players took on greater significance—most notably the Republican State Leadership Committee (RSLC), a national organization whose mission “is to elect down-ballot, state-level Republican officeholders,” 3 which put nearly $3.4 million into state and local judicial races in five states. Notably, attention by national groups continued to overwhelmingly favor judges on the right: there was far less documented spending by national groups in support of candidates with Democratic ties, although many Democratic candidates benefited from state-level support.
While weak disclosure laws often make it hard to trace the underlying interests behind this flow of money, available information suggests that fights around the perceived business-friendliness of courts continue to be a prime motivation for spending. As reflected in the states profiled in this chapter, this dynamic played out differently depending on the specific issues likely to be addressed in a state’s high court—from environmental protection in Montana to tobacco litigation in Illinois. And while business climate is important, other controversial issues, such as school vouchers, were also spending drivers in individual states. These spending patterns raise troubling questions about how wealthy interests may be shaping courts in their favor—and the pressures judges may face when these same interests appear before them.
Contributions by Sector
An analysis of direct contributions to state Supreme Court candidates in 2013-14 4 shows that business interests as well as lawyers and lobbyists were the largest donors, each responsible for about a third of all contributions, and together equaling 63 percent of all donations made to candidates this cycle. These trends have been relatively consistent over time, as lawyers and lobbyists and business interests have dominated candidate contributions since the New Politics series began.
National Groups Target State Races
National organizations such as the Republican State Leadership Committee, Americans for Prosperity, the Law Enforcement Alliance of America, and the Center for Individual Freedom invested heavily in state races this cycle, helping to drive up the percentage of spending that came from outside groups. In 2013-14, national groups and their state affiliates 5 spent an estimated $4.8 million 6 on state Supreme Court races, making up about 14 percent of total spending. Because this estimate excludes contributions by national groups to organizations that did not spend exclusively on state Supreme Court races, the actual figure is likely much higher.
While limited disclosure information makes it difficult to fully assess who sought to influence judicial elections in 2013-14, several metrics suggest that national groups played a more prominent role than in other recent cycles. National groups made up three of the top 10 documented spenders in 2013-14 (the RSLC, American Freedom Builders, and the Center for Individual Freedom), while only one national group made the top 10 in 2011–12 or 2007–08 (the Judicial Crisis Network and the Center for Individual Freedom, respectively) and two made the top 10 in 2009-10 (the Law Enforcement Alliance of America and the National Organization for Marriage). National groups were also responsible for a higher percentage of television spending in 2013-14 (13 percent) than in 2011–12 (four percent) or 2009-10 (eight percent). 7 Heightened interest by national groups in judicial races is potentially significant, because of their capacity to operate in multiple states and their access to deep coffers.
This cycle, the Washington, D.C.-based RSLC was the largest multi-state spender and put money into the greatest number of states, spending in state Supreme Court elections in North Carolina, Illinois, Montana, and Tennessee, along with a circuit court race in Cole County, Missouri. This was part of a public strategy: in April 2014, the RSLC announced that it had begun a “Judicial Fairness Initiative” to focus on state Supreme Court campaigns. In an interview with The Washington Post, the Committee’s president explained the motivations for the initiative, stating, “Republicans have had a significant amount of success at the state level … implementing bold conservative solutions. Unfortunately, that’s running into a hard stop with judges who aren’t in touch with the public.” 8 Sure enough, over the next seven months, the RSLC committed nearly $3.4 million in documented spending across five state and local races.
Several other right-leaning national groups also weighed in on state Supreme Court races in 2013-14. The top spenders included:
- The Judicial Crisis Network, a conservative group originally founded to support President George W. Bush’s U.S. Supreme Court nominees, 9 with reported financial ties to the Koch brothers, 10 and whose founders also played prominent roles in the influential conservative legal association The Federalist Society. 11 The Judicial Crisis Network gave $528,000 to organizations that spent hundreds of thousands of dollars on judicial elections in Wisconsin and Tennessee.
- The Virginia-based Center for Individual Freedom, a libertarian group that received over $2 million in 2012 from Karl Rove’s Crossroads GPS PAC 12 and has actively fought election disclosure requirements. 13 The organization spent over $468,000 on TV ads in Michigan that hailed two Republican-appointed justices for having “thrown the book at violent child predators.” 14
- The State Government Leadership Foundation, which describes itself as “conservative” and “a strategic partner of the Republican State Leadership Committee,” 15 and whose past funders include Exxon, Pfizer, Time Warner, and trade associations for pharmaceuticals, energy, and tort reform. 16 The organization ran over $40,000 worth of TV ads in Tennessee.
- The Law Enforcement Alliance of America (LEAA), which has reportedly received funding from the National Rifle Association. 17 The LEAA spent $165,000 in Arkansas on TV ads that, among other things, accused a judicial candidate of calling child pornography a “victimless crime.” 18
- Americans for Prosperity (AFP), a 501(c)(4), Virginia-based organization founded in 2004, 19 led and funded by prominent libertarians Charles and David Koch. 20 AFP spent nearly $70,000 in Montana, along with undisclosed amounts on radio ads and mailers in Tennessee to “educate the public on the liberal records” of three justices running for retention. 21 Billing itself as “the state’s foremost advocate for economic freedom,” 22 AFP’s Tennessee affiliate was able to criticize the justices without disclosing its expenditures because its messaging did not expressly advocate for their defeat.
Documented spending by national groups on the other side of the political aisle was generally minimal. Notable, however, was the American Board of Trial Advocates, which gave $25,000 to Tennesseans for Fair Courts, which supported the three justices seeking retention in that state. Progressive Kick IE North Carolina, which describes itself as “a national organization that is working to elect fair minded North Carolina Supreme Court Justices and Courts of Appeals Judges,” 23 spent $8,500 on mailers backing two justices supported by Democrats. Finally, the North Carolina Chapter of the Sierra Club—which holds itself out as the “oldest, largest, and most influential grassroots environmental organization in the United States” 24—spent a little over $1,300 on materials supportive of the judicial candidates with Democratic ties (as well as one candidate with Republican ties).
Following the Money: Five States in Focus
What motivates spending in state Supreme Court races? Financial interests frequently appear to be paramount, with lawyers, businesses, and other repeat players investing heavily in who sits on the bench—sometimes while important cases loom on the horizon. Party agendas also cast a long shadow, even in states with formally “nonpartisan” elections, where party labels do not appear on the ballot. The following five examples help illustrate the interests that seek to shape the courts, and the financial strings that can tether candidates to their supporters.
Illinois: Plaintiffs’ Lawyers and Big Tobacco Face Off
Illinois Supreme Court Justice Lloyd Karmeier’s 2014 retention election was quiet until a $3 million spending battle broke out less than three weeks before Election Day. Spending was largely linked to interests with a connection to a high-stakes, multibillion-dollar lawsuit that was being heard by the Illinois Supreme Court.
This lawsuit involved Philip Morris’ allegedly deceptive marketing of “light” and “low-tar” cigarettes and was pending before the Illinois Supreme Court at the time of the election (and was still pending at the time this report went to press). The stakes were high: a lower court had imposed $10.1 billion in damages against the tobacco giant, and the lawyers who brought the suit reportedly stood to receive a $1.8 billion payout in the event of a win. 25
The case also has a long history: a majority of the Illinois Supreme Court, including Karmeier, previously invalidated the multibillion-dollar verdict in 2005, ruling that the plaintiffs’ claims were barred under the Illinois Consumer Fraud Act because the Federal Trade Commission (FTC) had effectively approved the use of the “light” and “low-tar” labels. 26 In April 2014, an intermediate appeals court in Illinois restored the verdict in light of new evidence that the FTC had never approved the defendant’s use of these terms, 27 and in September 2014 the state’s high court agreed to hear an appeal. Due to changes in the composition of the Illinois Supreme Court, Karmeier was one of only two justices still on the court who had voted to dismiss the case back in 2005. 28
Funneling money into efforts to oust Karmeier in 2014 was a new group called “Campaign for 2016,” created less than a month before Karmeier’s retention election and funded entirely by a group of plaintiffs’ lawyers and firms. During the PAC’s short existence, these lawyers and law firms poured over $2 million into the fund for the express purpose of campaigning against Karmeier—with 85 percent of the funding coming from lawyers and law firms that were representing the plaintiffs in the Philip Morris case. This money largely funded attack ads that called Karmeier “the special interest judge,” referring to his decision not to recuse himself from hearing cases allegedly involving campaign supporters, both in the earlier iteration of the Philip Morris litigation, as well as in another multimillion-dollar suit involving State Farm Insurance. 29
On the other side was Philip Morris. The company denies playing any role in the state Supreme Court election. However, it donated, through its parent company Altria, a total of $500,000 to the RSLC between October 6 and October 8, 2014, just a few weeks after the Illinois Supreme Court agreed to hear the plaintiffs’ appeal, in addition to making earlier contributions in 2013 and 2014 of more than $230,000. 30 A spokesperson for Altria stated that “we informed the [national] RSLC—both orally and in writing—that the company’s funds could not be used in any way for judicial elections.” 31 Within three and a half weeks of Altria’s donations, the RSLC gave over $978,000 to its Illinois affiliate, which in turn spent this same amount supporting Karmeier, mostly through TV ads.
Karmeier scraped by in the retention election with 60.8 percent of the vote, just barely reaching the 60 percent threshold for retention required under Illinois law. Then, in February 2015, the plaintiffs requested that Karmeier be disqualified from the Philip Morris case because of the substantial amounts of money furnished both for and against his retention election by lawyers and parties in the case just a few months prior. This followed an earlier recusal motion brought in May 2014, citing alleged campaign spending by Philip Morris and its amici supporters in support of Karmeier’s initial election to the bench in 2004.
Karmeier denied the May 2014 request in a 16-page order explaining that he believed he could decide the new appeal without bias and arguing that the judicial system would “come to a grinding halt if contributions by organizations and interest groups were sufficient to force a judge to recuse himself or herself in any case in which a member of the group was a party.” 32 In March 2015, the Illinois Supreme Court also denied the February 2015 disqualification request and stated that the motion for recusal had been referred to Karmeier for consideration. At the time this report went to press, Karmeier had not responded to the motion.
Of the Illinois race, one commentator observed, the “entire spectacle is a vivid demonstration of the corrosive impact that big-time financial contributions in judicial election campaigns have on the credibility of court rulings.” 33
From Global Corporations to Local Schools, Special Interests Funded North Carolina Races
While Illinois’ retention election was dominated by spenders connected to a single high-stakes case, North Carolina’s Supreme Court election drew the attention of numerous wealthy interests with stakes in the court’s rulings.
Although Democratic and Republican candidates both undertook extensive fundraising, Republican candidates also benefited from substantial outside spending from three groups with business ties: Justice for All NC (principally funded by the RSLC) spent $1.4 million, while the North Carolina Chamber IE, a political arm of the North Carolina Chamber of Commerce, and the North Carolina Judicial Coalition each spent hundreds of thousands of dollars.
Notably, each group’s contributors were dominated by business interests: RSLC backers ranged from health care to energy companies, among many others, while the North Carolina Chamber IE received significant contributions from tobacco company Reynolds American ($100,000), the insurance company Blue Cross/Blue Shield ($75,000), and Koch Industries ($50,000). The North Carolina Judicial Coalition also received $50,000 from Reynolds American, as well as $15,000 from insurance company Medical Mutual.
Many of these donors were likely drawn to the state Supreme Court race by business interests that could be affected by the high court’s interpretation of state laws. For example, two of the RSLC’s biggest donors in the state—Reynolds American and Lorillard Tobacco—are North Carolina companies and regular targets of consumer lawsuits. These two companies combined have reportedly contributed more than $2 million to the RSLC since 2011. 34 Another local company—Duke Energy, which has reportedly contributed $285,000 to the RSLC since 2011, 35 including $10,000 before the 2014 state Supreme Court primary—won a major case concerning rate increases 36 and a high-profile case concerning the company’s deadline for cleaning up leaking coal ash dumps 37 in 2014 and 2015, respectively. Both of these cases were pending during the 2014 election.
A school voucher case that was before the court during the 2014 election likely also attracted attention. In December 2013, a constitutional challenge to a state voucher program, which allows public money to go to low-income families for use at private schools, came before the North Carolina Superior Court. In August 2014, a superior court judge ruled that the voucher program was unconstitutional. 38 The parties appealed, and on October 10, 2014, the North Carolina Supreme Court announced that it would bypass the court of appeals and review the superior court judge’s ruling.
That very same day, Robert Luddy, a North Carolina businessman who founded a number of private and charter schools in North Carolina, donated $15,000 to the North Carolina Judicial Coalition. Over the next few weeks, as Election Day grew near, the North Carolina Judicial Coalition spent nearly $250,000 on TV ads and mailers supporting Republican candidates. Luddy’s company, CaptiveAire, had previously contributed $15,000 to the North Carolina Chamber IE during the primary season. The Chamber spent a total of $345,000 on the primary and also spent on other North Carolina races. The voucher case attracted other groups with interests in education policy as well: the American Federation for Children, a conservative-backed 501(c)(4) that supports school vouchers, gave $75,000 to Justice for All NC, which spent a total of $1.4 million on the races. In July 2015, the North Carolina Supreme Court upheld the voucher program in a 4-3 decision split along partisan lines. 39
Political and Natural Resource Interests Invest in Ohio Supreme Court Race
In Ohio, it was the Republican Party establishment that stood out among campaign spenders. Though two sitting justices stood for election in Ohio’s 2014 Supreme Court race, the vast majority of campaign spending came in support of a single candidate, incumbent Justice Judith French—who started the race behind in the polls against her challenger, Court of Common Pleas Judge John O’Donnell. 40
Appointed by Republican Governor John Kasich, French described herself on the campaign trail as a “backstop” of support for the Republican governor and legislature (see “State in Focus: Ohio” in Chapter 1), and while on the bench authored an opinion that prevented a progressive policy group and two Ohio legislators from challenging JobsOhio, the nonprofit economic development corporation formed via a major piece of legislation, supported by the Kasich administration, that privatized most of the state government’s economic development functions. 41
Although the state’s general election is technically nonpartisan, with no party labels appearing on the ballot, the Ohio Republican establishment came out in support of French. American Freedom Builders (AFB), a Washington, D.C.-based group with reported ties to Kasich 42 (and for which there is little public information available about its funders), 43 spent nearly $600,000 on outside spending in support of French. The Ohio Republican Party likewise invested $125,000 in outside spending in support of her campaign.
French also raised more than $1 million directly, including nearly $30,000 from state and local Republican committees. Another major source of contributions was from businesses and individuals with energy and natural resources ties, which collectively contributed over $100,000 to French’s campaign. Notably, French received almost $60,000 from parties, lawyers, and groups that filed amicus briefs in a case regarding a controversial method of extracting natural gas known as “fracking,” which was pending before the Ohio Supreme Court at the time of the election. 44 In February 2015, a 4-3 majority of the court struck down local ordinances regulating fracking activities, holding that they conflicted with state laws regulating oil and gas activities in Ohio. French authored the opinion. 45
French’s opponent, O’Donnell, did not benefit from outside spending and his fundraising, at just over $377,000, fell far short of the amount raised by French, although he did receive tens of thousands of dollars from Democratically-aligned groups and labor unions. Despite starting behind in the polls, French ultimately won her election with just under 56 percent of the vote.
Big Business Clashes with Environmental Interests in Montana
Montana attracted a diverse array of wealthy interests during its record-setting 2014 judicial elections, as business interests and plaintiffs’ lawyers squared off. Two incumbents were up for reelection in nonpartisan elections, James Rice, a justice with Republican ties, and Michael Wheat, a justice with Democratic ties, but it was Wheat’s race against former state solicitor general Lawrence VanDyke that attracted the vast majority of spending.
One identifiable interest at play related to the environment. Wheat had authored 46 and dissented 47 from opinions impacting energy and development companies, and described himself on his campaign website as a “defender of Montana’s constitutional right to a clean and healthful environment.” 48A win for VanDyke, who criticized Wheat for “letting his environmental views influence his decisions on the court,” 49 would have reduced Democratic control of the court to a 4-3 majority and given opponents of strong environmental regulations a potential ally.
Among other interests, VanDyke attracted support from Great Northern Properties (GNP), a Houston, Texas-based company that operates coal reserves and offers bituminous coal mining services, and its Chairman and CEO, Corbin Robertson Jr. In 2009, GNP entered into a lease with Arch Coal—the second largest coal producer in the United States—granting Arch Coal the right to mine GNP’s coal interests in the Otter Creek coal tracts, located in southeastern Montana. 50 The other half of the Otter Creek tracts was owned by the state, and when Arch Coal signed a lease with the state the following year for the remaining rights, its lease became the subject of a high-stakes case for the future of the Otter Creek tracts. Finding that the lease did not impact or implicate the Montana Constitution’s fundamental right to a clean and healthful environment, the Montana Supreme Court unanimously upheld the legality of the lease, while making clear that the lease did not automatically authorize or permit any mining activity by Arch Coal. 51 During the 2013-14 cycle, GNP and Robertson collectively donated $10,000 to Montanans for a Fair Judiciary (MFJ), which spent over $60,000 to support VanDyke. 52
Americans for Prosperity (AFP), which has previously been funded by the American Petroleum Institute—of which Robertson is a board member—also spent nearly $70,000 on TV ads characterizing Wheat as extreme, focusing on a dissent he authored that supported stricter requirements for natural gas wells.
Despite this opposition, Wheat ultimately raised more money than VanDyke, although VanDyke received more support from outside groups. For his part, Wheat’s support was dominated by plaintiffs’ lawyers, including nearly $520,000 in independent expenditures by the trial attorney-backed Montanans for Liberty and Justice. Wheat won the race with 62 percent of the vote.
Groups Pour Money into Preserving Wisconsin Supreme Court’s Conservative Majority
In Wisconsin, a 2013 state Supreme Court race attracted substantial support for conservative incumbent Justice Patience Roggensack. This spending faced new scrutiny when the state Supreme Court agreed in 2014 to hear a constitutional challenge to an investigation regarding Governor Scott Walker’s 2011–12 recall election—reportedly involving illegal coordination between Walker’s campaign and several of the same groups that had supported Roggensack and three other sitting justices in their state Supreme Court election campaigns.
While technically nonpartisan, the Wisconsin Supreme Court is widely understood to lean conservative. With that majority at stake in the 2013 race, support for Roggensack came principally from three outside groups, each responsible for more than $200,000 in independent expenditures: the Wisconsin Club for Growth, Wisconsin Manufacturers & Commerce (WMC), and the Wisconsin Realtors Political Fund. These groups in turn received substantial support from national groups and state affiliates with conservative or business ties during the same time period—including the State Government Leadership Foundation ($120,000 to WMC and $25,000 to the Wisconsin Club for Growth), the Judicial Crisis Network ($500,000 to the Wisconsin Club for Growth), and the National Association of Realtors State Exchange Account ($215,000 to the Wisconsin Realtors Political Fund). While past races in Wisconsin had seen substantial spending on both sides of the aisle, Roggensack’s supporters considerably outspent those of her opponent, Edward Fallone, whose largest funding sources were donations from labor as well as lawyers and lobbyists, equaling nearly half of all donations he received.
This financial support for Roggensack’s election drew new attention in 2014 when Wisconsin Club for Growth and WMC—along with Citizens for a Strong America—were reported to be under investigation for campaign finance violations relating to illegal coordination with Walker’s 2011–12 recall election. 53
The targeted groups filed a (sealed) suit challenging the investigation, which the Wisconsin Supreme Court agreed to hear. 54 Collectively, the three organizations have spent more than $8 million since 2007 supporting the election of four sitting justices on the court. The special prosecutor who initiated the investigation filed a (sealed) motion seeking the recusal of two justices, and also provided information about potential conflicts regarding two others. 55 While The New York Times editorial board argued that “This should not be a hard call,” 56 none of the justices agreed to step aside. 57