This cycle, the most striking television trends in state Supreme Court races related to the themes and tone of the advertisements themselves. While many candidates ran traditional ads that highlighted their experience and backgrounds, there was a notable shift toward criminal justice themes. In fact, over half of the spots that aired in 2013-14 (both positive and negative) related to whether candidates were “tough on crime.” 1

Although seven states saw nasty and often misleading negative ads, overall negativity was down compared to other recent cycles. Retention elections were an exception, however, as they experienced a surge in negative ads, while spots airing in partisan contests remained almost exclusively positive.

Looking at spending totals, overall TV spending decreased as compared to other recent non-presidential election cycles, although three states did see their TV spending records fall. However, in those states that did see TV ads, average spending per seat was slightly higher compared to other recent non-presidential cycles.

Major Themes

“Traditional” ads—those that highlight a candidate’s experience, values, and qualifications—were common in 2013-14, with 28 percent of all ad spots 2 showcasing these themes, compared to 17 percent in 2011–12. These ads were all positive in tone, ran in nine states in partisan, nonpartisan, and retention races, and were sponsored overwhelmingly by the candidates themselves.

However, while these “traditional” ads remained a fixture in the 2013-14 races, ads discussing public safety and criminal justice were the most common of the cycle, and played a much bigger role than ever before. 3

Criminal Justice-Themed Ads Set Record, Dominate Cycle

Ads discussing criminal justice issues—including describing a candidate as being tough or soft on crime, highlighting a candidate’s history of putting criminals behind bars, or showcasing their support of victims’ rights—made up an incredible 56 percent of all ads that ran this cycle. They appeared in 10 of the 11 states that saw TV spending, representing a substantially higher concentration than in past cycles. In fact, the previous high for criminal justice-themed ads was just 33 percent of total ad spots (in both 2007–08 and 2009-10).

Not only was criminal justice-themed messaging a bigger piece of the advertising pie this cycle, but half of these spots were sponsored by outside groups, many of which did not have an explicit criminal justice mission and received funding from businesses and plaintiffs’ lawyers. Campaign for 2016, for example, which ran an ad in Illinois criticizing Justice Lloyd Karmeier for failing “too many crime victims,” was exclusively funded by plaintiffs’ lawyers. And in North Carolina, the North Carolina Chamber IE, which ran an ad praising Judge Eric Levinson for “putting murderers, drug dealers, and sex criminals in jail,” received extensive funding from businesses and insurance companies.

With this trend come serious consequences for criminal defendants. Recent research suggests that the prominent role of criminal justice issues in judicial races may be influencing judicial decision-making. For example, one recent study found that an increase in TV ad airings correlated with fewer court rulings in favor of defendants. (See “TV Ads May Influence Judges Long After Election Day.”) Norman Reimer, Executive Director of the National Association of Criminal Defense Lawyers, put it this way: “[c]onstitutional rights of the accused persons are often the road kill in these judicial campaign wars … Our freedom and our constitutional rights depend on judges who have the courage to be fair and impartial. It’s a real problem if they know every ruling is likely to become fodder in a campaign.” 4

Criminal justice issues were particularly popular in attack ads, with a whopping 82 percent of attack spots focusing on criminal justice themes. These attacks typically criticized a candidate for being “soft on crime” and claimed that the candidate treated victims poorly. The three attack ads that aired the most this cycle were all criminal justice-themed, including one that criticized North Carolina Supreme Court Justice Robin Hudson for “siding with [child] predators,” one attacking three justices in Tennessee for being “liberal on crime,” and one attacking Illinois Supreme Court Justice Lloyd Karmeier for giving lenient sentences to criminals. In addition to these attack ads, 23 percent of all “contrast ads”—where one candidate is criticized while another candidate is promoted—also discussed criminal justice issues.

Criminal justice was also the most common theme in positive ads, which typically promoted candidates as “tough on crime.” In fact, of all the criminal justice-themed ads that ran this cycle, 76 percent of them were positive in tone. Common subjects included touting a judge’s sentencing record and decisions, as well as highlighting a candidate’s endorsements from police officers and/or prosecutors. In Tennessee, for example, after three justices who were up for retention were attacked for being soft on crime, the justices responded with ads claiming they had upheld “nearly 90 percent of death sentences.” In Wisconsin, an ad sponsored by Wisconsin Manufacturers & Commerce praised Justice Patience Roggensack for putting “children’s safety above all else” and for closing a “loophole that would have let a sexual predator back on the street.”

Ads Discussing Special-Interest Influence Prominent in Many States

Concern over special-interest influence on the judiciary and the judicial selection process was another major TV theme in 2013-14, perhaps speaking to public concerns about the integrity of the courts. Eight of the eleven states with TV spending saw ads discussing special-interest influence on the judiciary, representing 16 percent of total ad spots in 2013-14. Special-interest influence has been a prominent theme in other recent cycles as well. Sixteen percent of the ads that aired in 2011–12 featured this theme, as did 13 percent of ads in 2009-10.

Over 50 percent of the special-interest-themed ads that ran this cycle were negative in tone. These ads frequently criticized candidates for being “in the pocket” of corporations, as well as taking donations from groups and, in some cases, going on to rule in their favor. For example, one ad sponsored by Campaign for 2016 during Illinois Supreme Court Justice Lloyd Karmeier’s retention race criticized him “for letting corporations buy justice.”

Positive special-interest-themed ads promoted a candidate as someone who would stand up to outside groups and not allow them to influence the court. For example, Arkansas Supreme Court candidate Tim Cullen sponsored a spot stating that he would “have the courage to decide cases on the law and the Constitution, not on the demands of special interests.”

Ads praising judges for remaining fair and impartial when presiding over cases, and noting that judges should be free of any outside influences, were also common this cycle, with this theme appearing in 28 percent of all spots. The majority of these spots were positive in tone and were paid for by the candidates themselves.

Ad Tone and Negativity: Retention Races Go Negative

By total spots aired, only 21 percent of all ads were negative in tone in 2013-14, making this the cycle with the least ad negativity since 2000, the first year of the New Politics report series. In 2011–12, 24 percent of ads were negative in tone, and in 2009-10, 29 percent of ads were negative.

Retention races were a notable exception to the broader trend of less negativity in 2013-14, however, as negative ads in retention elections escalated significantly. This cycle, 46 percent of all ads that ran in retention races were negative in tone, compared with 10 percent in 2011–12, and 14 percent in 2009-10. Nasty retention races in Tennessee and Illinois drove these figures, as negative ads made up 42 percent of all ad spots in Tennessee and 71 percent of all ad spots in Illinois.

Although overall negativity was down, 7 of the 11 states with TV spending in the 2013-14 cycle saw at least one negative ad.

Montana’s 2014 nonpartisan election saw the highest percentage of negative ads of any race this cycle, with 93 percent of all spots characterized as negative in tone. Many of these ads criticized candidates for being “in the pocket of out-of-state special interests” or for “supporting extreme partisan measures.” Tennessee experienced the largest absolute number of negative ads, with nearly 2,000 negative spots appearing on television over a four-week period, claiming that the justices “threaten [voters’] freedoms” and that the court was “the most liberal place in Tennessee.”

Negative Ad Sponsorship, 2013-14

All Negative Ads

Attack Ads

Contrast Ads

Source: Analysis of ad spots by the Brennan Center for Justice based on data provided by Kantar Media/CMAG

Special-interest groups dominated negative ad buys, as a remarkable 100 percent of all attack ads were purchased by interest groups, including PACs and social welfare organizations. Interest groups also sponsored 86 percent of all negative ads (including both attack and contrast ads). The remaining 14 percent of negative ads that aired this cycle were sponsored by candidates, while political parties did not run any negative advertisements. Compare this to 2011–12, when special-interest groups sponsored 56 percent of negative ads, while 21 percent were sponsored by political parties.

In contrast, ads in partisan races were unusually positive this cycle. Ninety-eight percent of all the ads that ran in partisan contests were positive in tone in 2013-14, compared with 84 percent in 2011–12 and 67 percent in 2009-10. These numbers dropped a bit for nonpartisan elections in 2013-14, as 76 percent of the ads that ran in these elections were positive in tone.

Ad Tone by Sponsor, 2013-14

Candidates

Parties

Groups

Source: Analysis of ad spots by the Brennan Center for Justice based on data provided by Kantar Media/CMAG

Interest Groups and Political Parties Lead TV Spending

Consistent with this cycle’s overall spending trends, 5 TV spending in 2013-14 dropped slightly compared to other recent non-presidential election cycles. Total estimated TV spending was $16 million across 11 states, as opposed to $16.8 million across 15 states in 2009-10 ($18.2 million in inflation-adjusted terms), and $16.6 million across 11 states in 2005–06 ($19.4 million in inflation-adjusted terms). 6

Yet despite this dip in overall TV spending, average spending per open seat increased slightly in those states that saw TV spending, indicating that TV dollars were more heavily concentrated among fewer races. In the states that saw such spending, spending per open seat averaged about $600,000 in 2013-14, compared to $540,000 in 2009-10 and $450,000 in 2005–06.

Total TV Spending by Cycle, 2001-14

*In 2014, it was discovered that one 2008 ad had been improperly coded and included in the TV spending total for the 2007-08 cycle. That ad ran in an attorney general race, not a Supreme Court election.These calculations correct for that mistake. Data courtesy of Kantar Media/CMAG.

Just as candidate fundraising correlated strongly with success at the polls, TV spending likewise corresponded strongly with electoral success. Of the 18 races in which TV advertisements aired, 15 were won by the candidates who saw the most TV dollars spent in their favor, 7 or who saw more monetary support than the anti-retention efforts that opposed them. This included races such as the election between Justice Judith French and John O’Donnell in Ohio, where pro-French TV spending exceeded pro-O’Donnell spending by more than $1 million. Yet it also included much closer races, such as the retention battle in Tennessee, where pro- and anti-retention forces spent similar amounts on ads.

Non-candidate spending also continued to dominate TV ad buys. Together, outside groups and political parties were responsible for 58 percent of total TV dollars—a record for non-candidate spending in a non-presidential election cycle, and falling just short of the all-time record of 61 percent in non-candidate spending in the 2011–12 election cycle.

Total TV Spending, 2013-14

StateSponsorSpot CountEst. Spending
ArkansasCandidate93$44,210
Group811$164,560
Total904$208,770
IdahoCandidate79$23,060
Total79$23,060
IllinoisGroup2,300$1,820,630
Total2,300$1,820,630
MichiganCandidate4,841$2,054,090
Party3,778$3,342,430
Group481$468,110
Total9,100$5,864,630
MontanaCandidate168$39,450
Group1,532$314,180
Total1,700$353,630
North CarolinaCandidate8,731$2,039,685
Group2,172$1,054,940
Total10,903$3,094,625
OhioCandidate2,906$1,031,590
Party314$125,710
Group676$596,440
Total3,896$1,753,740
PennsylvaniaCandidate857$205,490
Total857$205,490
TennesseeCandidate2,099$854,040
Group2,499$893,930
Total4,598$1,747,970
TexasCandidate771$187,890
Total771$187,890
WisconsinCandidate1,140$266,490
Group2,675$467,930
Total3,815$734,420
Totals
Candidate21,685$6,745,995
Party4,092$3,468,140
Group13,1465,780,720
Overall38,92315,994,855
Data courtesy of Kantar Media/CMAG

Interest groups alone accounted for 36 percent of all TV spending in 2013-14, setting a record for interest group spending in a non-presidential election cycle, and similarly falling just short of the all-time record of 38 percent of total spending by interest groups in 2011–12. Eight of the eleven states with TV spending in 2013-14 saw at least one ad sponsored by an interest group, and two of those states, Ohio and Michigan, also saw spending by political parties.

Campaign for 2016, an Illinois-based group funded by plaintiffs’ trial lawyers, was the highest spending interest group that operated in a single state, sponsoring $1.1 million worth of TV ads in Illinois’ retention race, accounting for 60 percent of spending in the state and seven percent of total TV spending nationwide. The Michigan Republican Party was the highest spender overall, sponsoring $3.3 million worth of TV ads that equaled 21 percent of total 2013-14 TV spending nationwide.

The RSLC also spent significantly on TV this cycle across multiple states. Estimates from Kantar Media/CMAG indicate that the group spent nearly $800,000 in Illinois and Montana. State disclosure forms indicate that the RSLC also gave $1,300,000 to Justice for All NC, which spent an estimated $950,000 on TV in North Carolina, as well as an additional $140,000 to the Tennessee Forum, which spent an estimated $600,000 on TV advertising.

Television spending was heavily concentrated among a handful of big spenders: the top 10 TV spenders (including candidates, parties, and interest groups) were responsible for 67 percent of all TV dollars this cycle, which is comparable to the amount spent by the top 10 spenders in 2011–12 and 2009-10. Likewise, while 11 states saw television ads in 2013-14, spending in just five states—Illinois, North Carolina, Michigan, Ohio, and Tennessee—collectively accounted for 89 percent of total TV dollars nationally. TV spending exceeded $1 million in each of these states.

Michigan, where eight candidates faced off for three seats on the bench, saw the most TV dollars overall, with an estimated $5.9 million in TV spending. North Carolina, where nine candidates competed for four open seats, took the second-place spot for spending, at $3.1 million, as well as the first-place spot for total number of ad airings (10,903).

TV Spending Records Fall in Three States

Two high-profile retention elections and one nonpartisan race dominated by outside spending also led to three state TV spending records falling this cycle. 8 In Illinois, where judges compete for open seats via contested partisan races, which are then followed by retention elections every 10 years, Justice Lloyd Karmeier’s retention battle drew $1.8 million in ads—setting a new TV record for retention races in the state. Karmeier’s initial election to the bench in 2004 also holds the record for highest TV spending in a contested judicial race in Illinois, coming in at $6.8 million.

Top 10 TV Spenders, 2013-14

SpenderStateSpot CountEst. Spending
Totals20,053$10,732,775
Michigan Republican PartyMichigan3,778$3,342,430
Richard BernsteinMichigan3,244$1,318,850
Campaign for 2016Illinois1,627$1,089,370
Justice for All NCNorth Carolina1,906$952,590
Republican State Leadership CommitteeMontana & Illinois1,226$796,620
Gary Wade, Cornelia Clark, & Sharon LeeTennessee1,877$737,180
Brian Zahra & David VivianoMichigan1,387$690,710
Mark MartinNorth Carolina2,765$611,615
The Tennessee ForumTennessee1,567$596,970
American Freedom BuildersOhio676$596,440
This chart is based on data gathered by Kantar Media/CMAG and reflects the cost of ads that were directly paid for by one of the top 10 groups. The Republican State Leadership Committee contributed significant sums of money to both Justice for All NC ($1.3 million) and the Tennessee Forum ($140,000), who then went on to sponsor TV ads of their own. Those contributions are not included in the RSLC’s total estimated TV spending.

Another state record was set in Tennessee, where $1.75 million was spent on TV ads in the weeks leading up to three justices’ August 7 retention elections. The Tennessee Forum, a group largely funded this cycle by Lieutenant Governor Ron Ramsey’s political action committee, RAAMPAC, led the charge in TV spending against the justices, sponsoring some $600,000 worth of ads that claimed that the state Supreme Court was “the most liberal place in Tennessee.” Justices Clark, Lee, and Wade fought back with $850,000 in advertising that condemned the attacks and highlighted their professional qualifications. Two other outside groups, one pro-retention and one anti-retention, also jumped into the ad war fray, collectively spending $300,000 on spots.

Finally, in Montana, a heated nonpartisan race between incumbent Justice Mike Wheat and challenger Lawrence VanDyke drew a record-setting $350,000 in TV spending. (See “Montana in 2013-14 Ad Spotlight.”) Two national groups, Americans for Prosperity and the Republican State Leadership Committee, lobbed attack ads against Wheat, while a group called Montanans for Liberty and Justice responded with ads critical of VanDyke.

Notes:

  1. Storyboards and copies of all ads are available on the Brennan Center’s website at Buying Time 2013, available at http://www.brennancenter.org/analysis/buying-time-2013, and Buying Time 2014, available at http://www.brennancenter.org/analysis/buying-time-2014.
  2. “Ad spot” refers to the number of times an ad aired. This number varies for each individual advertisement. See the figures in “Sponsors, 2013–14 Supreme Court TV Ads” for more information.
  3. 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. All comparisons to past election cycles are calculated using old Kantar Media/CMAG data and information from previous New Politics reports. Kantar Media/CMAG data is unavailable for several ads that ran in 2009 and 2007. Analyses of the 2009–10 and 2007–08 election cycles are based on available data.
  4. Christie Thompson, Trial by Cash, Marshall Project (Dec. 11, 2014, 8:06 AM), https://www.themarshallproject.org/2014/12/11/trial-by-cash.
  5. See Chapter 1 for additional explanation.
  6. Inflation-adjusted terms calculated using Morgan Friedman’s inflation calculator that converts the numbers to 2014 dollars. See Morgan Friedman, The Inflation Calculator, Westegg.com, http://www.westegg.com/inflation/ (last visited Aug. 20, 2015).
  7. Includes money spent in support of a candidate and/or money spent attacking their challenger(s).
  8. Analysis of records based on available data. The New Politics report series first began tracking TV spending in North Carolina, Tennessee, and Illinois in 2000. TV tracking in Montana began in 2008. Prior to 2008, Montana’s media market was not one of the top national media markets, therefore TV spending estimates were not gathered by Kantar Media/CMAG.