Over the last decade and a half, state Supreme Court elections have been transformed into politicized and costly contests, dominated by special interests seeking to shape courts to their liking. The most recent 2013–14 cycle was no different, as the pressure of big money—increasingly reflected in outside spending by special-interest groups—threatened the promise of equal justice for all.
Thirty-eight states conduct elections for their highest courts. There are partisan and nonpartisan contested elections, where multiple candidates vie for a single seat. And there are judicial retention elections, where sitting justices face yes-or-no votes. In total, almost 90 percent of state appellate court judges must regularly be reelected. 1 Elections mean campaigns, and campaigns cost money—as candidates, their campaign contributors, political parties, and special-interest groups all know.
Fundraising success was highly correlated with success at the ballot box this election cycle: in the 23 contested seats this cycle, 21—or over 90 percent—were won by the candidate whose campaign raised the most money. Multiple factors likely contributed to this relationship, but research suggests that in judicial elections, both incumbents who were initially appointed, as well as challengers, gain electoral advantages from heightened spending. 2
The stakes are high for all of us. Approximately 95 percent of all cases initiated in the United States are filed in state courts, 3 with more than 100 million cases 4 coming before nearly 30,000 5 state court judges each year. State Supreme Courts, the final authority on state law, set legal standards that determine individuals’ and businesses’ rights and liabilities. Their dockets address issues as diverse as education, the environment, contract and commercial disputes, voting rights, criminal justice, real estate, health care, and corporate accountability. Yet while these decisions affect people’s everyday lives in significant ways, the culture of influence from well-to-do donors and special interests may threaten the ability of judges to deliver impartial justice. In 2013–14, state Supreme Court election spending took place in 18 states and exceeded $34.5 million—much of it coming from special interests. Overall spending was slightly lower than in other recent cycles because of an unusually high number of unopposed races. However, in states with the most expensive races, spending patterns were consistent with recent trends.
Since 2000, The New Politics of Judicial Elections series has told the story of the politicization of state Supreme Court elections, highlighting the news and trends that defined each election cycle. This edition goes deeper, connecting these spending numbers to particular interests and showing how individuals, industries, and special interests tried to shape the courts. From deep-pocketed trial attorneys in Illinois to a charter school advocate in North Carolina, this report looks at who stands to win—and who stands to lose—when money floods our courtrooms.
Here are the five big takeaways:
Outside Spending by Special-Interest Groups Made Up a Record Percentage of Total Spending.
Spurred in part by the U.S. Supreme Court’s 2010 ruling in Citizens United v. FEC, special interests are increasingly taking out their own ads and sponsoring other election materials in judicial races rather than contributing directly to candidates. In 2013–14, outside spending by interest groups, including political action committees and social welfare organizations, was a higher percentage of total spending than ever before, accounting for over 29 percent of total spending, or $10.1 million, topping the previous record of 27 percent in 2011–12. When outside spending by political parties is also included, the percentage rises to 40, a record for a non-presidential election cycle and just short of the all-time non-candidate spending record of 42 percent in 2011–12. Much of this spending came from groups that were not required to publicly disclose their donors, or who were not required to disclose their expenditures under state law, making it hard to discern the interests seeking to shape state courts.
Big Spenders Dominated.
State court judges rule on cases that affect us all, but their campaigns are overwhelmingly supported by wealthy interests, enabling a system that may disproportionately elevate the preferences of wealthy spenders. The top 10 spenders this cycle, for example, accounted for nearly 40 percent of total spending nationwide. This economic power was even more concentrated when it came to television spending, as the top 10 TV spenders paid for 67 percent of total TV spending. Furthermore, in 14 of the 18 states where candidates raised money, a majority of their contributions came from donors who were willing and able to shell out at least $1,000—a substantial figure in the context of relatively low-cost judicial elections. Nearly one-third of these direct contributions came from lawyers or lobbyists, many of whom could be expected to have interests before the courts.
“Tough on Crime” Was the Most Common Campaign Theme.
The politicking in judicial elections around criminal justice issues is intense. A record 56 percent of television ad spots this cycle discussed the criminal justice records of judges and candidates. These ads typically either touted a candidate’s history of putting criminals behind bars or attacked them as soft on crime. Previous highs for criminal justice-themed ads compare at 33 percent in 2007–08 and 2009–10. While most of these ads were positive in tone (praising a candidate as “tough on crime”), criminal justice was also the single most common theme of attack ads. Overall, 82 percent of attack ads discussed criminal justice issues, including an ad that claimed one sitting North Carolina Supreme Court justice was “not tough on child molesters” and “not fair to victims.” Who funds these ads? Often, groups with no demonstrable interest in criminal justice issues, suggesting that criminal justice may be used strategically as a wedge issue. The stakes are high: recent research suggests that the prominent role of criminal justice issues in judicial races may ultimately be influencing judicial decision-making.
National Organizations Continued to Target State—and Even Local—Races.
Spending on state judicial elections is also increasingly nationalized. National groups and their state affiliates spent an estimated $4.8 million on state Supreme Court races, approximately 14 percent of total spending. (Because this figure excludes contributions by national groups to state organizations that did not spend exclusively on state Supreme Court elections, the real number is likely much higher.) While data limitations make comparisons over time difficult, several metrics, including an analysis of TV sponsorship, suggest that national groups paid greater attention to state Supreme Court races in 2013–14 than in other recent cycles. And though voters of all political persuasions care about the fairness of our courts, most of the spending by national groups targeting judicial elections came from the political right. The Republican State Leadership Committee (RSLC) led the pack, spending nearly $3.4 million across four state Supreme Court elections—as well as one county court race—through its publicly announced “Judicial Fairness Initiative.” Other major spenders included the Center for Individual Freedom and American Freedom Builders.
Retention Elections Remained a Battleground for Special Interests and Partisan Politics.
Retention elections, in which the public casts a yes-or-no vote for a sitting justice, have also become political battlegrounds in recent cycles. These races used to be fairly low-cost and low-attention affairs, and, on average, many still are. But in a handful of states, retention campaigns have become intense, high-profile, and expensive—frequently in response to a decision in a controversial case or when there is an opportunity to change the ideological composition of a court. Average per seat spending in retention elections in 2009–14 reflects a tenfold increase from the average over the previous eight years. Overall, nearly $6.5 million was spent on retention races in three states in 2013–14. Multi-million-dollar elections in Illinois and Tennessee were some of the most expensive and contentious races this cycle. The trend puts new pressures on judges who had previously been largely insulated from politicized judicial elections.
The 2013-14 election cycle reflects pressing challenges for all those who believe we need to keep our state courts fair, impartial, and equitable for all: record levels of influence by outside spenders, increased political pressure from legislatures and governors, and a growing economy of influence that threatens to tip the scales of justice toward the wealthy and powerful and away from ordinary citizens.