Under the constitution, our courts are obliged to provide equal justice regardless of wealth, status, or political connections. But in a new report, the latest in the series The Politics of Judicial Elections, we found that the integrity of our state supreme courts is increasingly under threat from a torrent of special interest money, often from secret sources. Using data from every state supreme court election in the most recent 2015–16 cycle, the report is the only comprehensive analysis of these and other trends, and includes examples of what big spenders hope to achieve, the kinds of ads the fund, and the threats they pose to the appearance and reality of evenhanded justice.
INTRODUCTION
It’s no secret that the proliferation of big money in politics, abetted by 2010’s Citizens United Supreme Court decision, has upended American elections from the smallest mayoral races to the most high-profile U.S. Senate battles. What has received far less attention, however, is that influence-seeking money has also made tremendous inroads into our courts — institutions that are constitutionally obliged to provide equal justice regardless of wealth, status, or political connections. Thirty-eight states conduct elections for their state supreme courts, powerful entities that are generally the final word on interpreting state law. This report, the most recent edition in a series that has tracked and analyzed state supreme court elections since 2000, looks at the 2015–16 supreme court election cycle. We identified several disturbing new developments that sharpen questions about partisan and special interest pressures in judicial races and about the capacity of impacted courts to deliver evenhanded justice.
For the first time, we undertook an in-depth analysis of donor transparency among interest groups and found that “dark money” spending, by groups whose funding sources are concealed from the public, is booming in state supreme court elections. Outside spending by interest groups also broke records again, while there were more high-cost races than ever before. Recognizing that expensive and politicized supreme court elections are now a fixture in many states, this year we also changed the report’s title, dropping the word “New” from The New Politics of Judicial Elections.
➢Outside spending by interest groups shattered records. Rather than contributing to candidates or political parties, wealthy interests are increasingly relying on outside spending by groups as a way to influence state supreme court elections, mirroring the trend in elections for political offices since the Supreme Court’s 2010 decision in Citizens United v. FEC. During the 2015–16 supreme court election cycle, political action committees, social welfare organizations, and other non-party groups engaged in a record $27.8 million outside spending spree, making up an unprecedented 40 percent of overall supreme court election spending (as compared with only 29 percent in 2013–14). Funneling spending through outside groups may be attractive to donors because it often allows them to avoid campaign contribution limits and disclosure requirements.
➢Supreme court elections saw an influx of secret money. The growth of outside spending by interest groups has brought with it a stunning lack of transparency. For the first time, this report quantified the amount of money in state supreme court elections coming from sources concealed from the public. We found that only 18 percent of interest groups’ outside expenditures during 2015–16 could be easily traced to transparent donors. With respect to the remaining expenditures, donors were either undisclosed (54 percent), a type of spending known as “dark money,” or buried behind donations from one group to another (28 percent), making it difficult or impossible to discern the ultimate funding source, a type of spending known as “gray money.” Such secrecy risks leaving voters uninformed about who is seeking to shape state high courts, and leaves litigants (and often even judges) without the tools to identify potential conflicts of interest.
➢There were more million-dollar supreme court races than ever before. Twenty-seven justices were elected in $1 million-plus races in 2015–16, compared with the previous high of 19 justices in 2007–08. Pennsylvania also set an all-time national record for its 2015 election, attracting a total of $21.4 million in spending for three open seats. A greater number of justices elected in high-dollar races means more potential conflicts of interest and heightened pressure on all judges to curry favor with wealthy interests who can subsidize the increasingly high cost of a future election
➢ More than half of all states with elected high courts are now impacted by big-money elections. By the start of 2017, 20 states had at least one sitting justice who had been involved in a $1 million race during his or her tenure. By contrast, in 1999, the number was only seven. As of January 2017, one-third of all elected justices sitting on the bench had run in at least one $1 million-plus election. These figures highlight that across the country, politicized state supreme court elections are no longer the exception, but the rule.
➢ Campaign ads targeted judicial decisions, often in misleading ways. More than half of all negative television ads aired during the 2015–16 election cycle criticized judges for their rulings on the bench, often in a misleading way designed to stoke emotion and anger. Targeting judicial decisions poses worrying threats to judicial independence, and there is both anecdotal and empirical evidence that such election pressures impact how judges rule in cases.
Courts are powerful. Their rulings impact our health, our freedom, and our bank accounts — leaving behind winners and losers. Our system can only work if judges decide cases, in good faith, based on their understanding of what the law requires — and if the public believes that they are doing so. As powerful interests increasingly see the courts as an effective vehicle for furthering their political, ideological, or financial agendas, this promise of both the appearance and reality of evenhanded justice is at risk.
Who Pays for Judicial Races? The Politics of Judicial Elections 2015–16 by The Brennan Center for Justice on Scribd