A new report from the Brenan Center for Justice at NYU School of Law is the first comprehensive analysis of election spending for judicial positions over the past decade. According to the report, “The New Politics of Judicial Elections, 2000-2009: Decade of Change,” spending on state Supreme Court elections has more than doubled in the past decade, from $83.3 million in 1990-1999 to $206.9 million in 2000-2009. And not surprisingly, deep-pocketed special interests are a determining factor in choosing state jurists.
For more than a decade, there has been surge of spending by partisans and special interests from across the political spectrum. The report demonstrates this flood in spending—much of it funneled through secret channels—has fundamentally transformed state Supreme Court elections. Read the report here.
In a foreword, Sandra Day O’Connor, retired U.S. Supreme Court Justice, warned that elected judges are widely seen by the public as beholden to campaign benefactors who sometimes spend millions to sway court races.
The Executive Summary provides the report’s key findings, including:
• Spending records were repeatedly shattered nationally and by state throughout the decade. Candidates raised $206.9 million in 2000-2009, compared with $83.3 million in the 1990s. Twenty of the 22 states that hold at least some competitive elections for judges had their most expensive election ever in the last decade.
• A select group of “super spenders” is outgunning small donors. In the 29 costliest elections in 10 states, the top five spenders each averaged $473,000 per election to install judges of their choice, while all other contributors averaged only $850 apiece.
• Judicial elections are increasingly focusing not on competence and fairness, but on promising results in the courtroom after electionday. The tort reform wars have driven this trend, with a half-dozen national business-funded groups, and leaders of such corporate giants as Home Depot and AIG insurance, squaring off against plaintiffs’ attorneys and unions.
• A TV spending arms race continues to escalate, creating a need for money that only special interests can satisfy. In 2007-08, $26.6 million was spent on Supreme Court TV ads, the costliest two-year ad cycle since tracking began in 2000. For the decade, supreme court candidates, special-interest groups and political parties spent an estimated $93.6 million on TV ads.
• Special interests are committed to dismantling spending limits, eliminating merit selection of judges, and keeping campaign spending secret by assaulting decades of disclosure laws. A campaign is underway to persuade federal courts to downplay the Constitution’s due process guarantee by reinterpreting the he First Amendment to gut and weaken federal and state election laws.
• Many judicial election spenders, including plaintiffs’ lawyers and corporations, have a passion for secrecy—using shell organizations to keep their role out of the public eye. Such strategies are likely to continue even after Citizens United, a Supreme Court decision that allowed corporate and union spending in elections. This could make a true accounting of special-interest spending impossible in 2010 and beyond.
According to numerous polls taken throughout the decade, public concern is widespread and bipartisan. Three in four Americans believe campaign cash can affect courtroom decisions, and nearly half of state judges polled—46 percent—agree.
One positive cited in the report was a growing public desire to insulate courts from special-interest money. States like Michigan, New Mexico, North Carolina, West Virginia, and Wisconsin are responding to the new politics of judicial elections with tools like public financing of judicial elections, consideration of new judicial appointment/retention election systems, and tougher ethics rules forcing judges to sit out cases involving financial benefactors.
The concerns with judicial elections is even greater following the recent Supreme Court decision regarding corporate campaign donations, see Mutual Destruction in Judicial Elections Predicted.