While Washington politicians argue over the role of money in federal
elections, a growing number of states are starting to grapple with their
own challenge: a tide of special-interest money flowing into local
An exhaustive study scheduled to be released Monday shows that spending
on state Supreme Court elections has more than doubled over the past 10
years, to $207 million, mirroring the surge in contributions and
expenditures for other kinds of political races during the same period.
The report, produced by a trio of nonpartisan
policy groups, found that much of the increase has been fueled by
outside groups funding attack ads of the kind commonly found in partisan
races for the White House, Congress or governors' mansions. Industry
groups, trial lawyers and others are increasingly targeting specific
judges for removal over rulings that hurt their financial bottom line,
the report shows.
The findings come amid mounting evidence that 2010 is likely to mark a new watershed for spending in a midterm election
year. The study also underscores a growing debate in legal and
political circles over the influence of campaign money in judicial
races, particularly in 22 states where top judges face challengers or 16
others that hold "retention" elections for judges.
U.S. Supreme Court Justice Ruth Bader Ginsburg has joined her former
colleague Sandra Day O'Connor in calling on states to give up the
practice of electing judges, arguing that raising campaign money and
promising outcomes on the bench is antithetical to a fair judicial
In an introduction to the new report
-- produced jointly by the Brennan Center for Justice, the National
Institute on Money in State Politics and the Justice at Stake Campaign
-- O'Connor says the growing influence of special interests is
undermining public confidence in the courts. "Left unaddressed, the
perception that justice is for sale will undermine the rule of law that
the courts are supposed to uphold," O'Connor wrote.
The debate over judicial elections comes amid a flurry of defeats for
proponents of campaign finance restrictions, including a U.S. Supreme
Court decision allowing corporations to spend an unlimited amount of
money on political races.
Interest groups and political parties on both sides have already begun
ramping up spending on key state court races in Alabama and Michigan. In
Iowa, conservative activists are targeting justices involved in the
state's decision to legalize gay marriage.
The new study shows that total spending in state Supreme Court contests
has rocketed from less than $6 million at the start of the 1990s to more
than $45 million during the 2008 election cycle. Much of the activity
is focused in a handful of states with open elections for their high
courts, including Alabama, Pennsylvania, Ohio, Illinois and Texas, the
The spending is driven in part by outside interest groups on the right,
such as the Chamber of Commerce and its affiliates, and on the left,
including unions and trial attorneys.
In perhaps the best-known recent example, the chief executive of Massey
Coal Co. spent $3 million to help elect a West Virginia high-court
judge, who then participated in a case overturning a $50 million verdict
against the company. The case led to a landmark ruling from the U.S.
Supreme Court, which found that excessive campaign contributions can
create an unconstitutional threat to a fair trial.
"What you've got now is an industrialized apparatus to turn high-court
races into arms races," said Bert Brandenburg, executive director of
Justice at Stake.
"There's an instinct among the public that courts are supposed to be
different than the rest of the government, at least somewhat. The
question is whether the courts can stay impartial if they become
overwhelmed with cash," Brandenburg said.
In Wisconsin, a pair of high-profile contests in 2007 and 2008 attracted
millions from outside groups focused on whether to curb lawsuits and
damages awards. Those on the winning side in both races included the
conservative Club for Growth, while organized labor and progressive
groups spent heavily on the losers, the study shows.
The influx of hardball politicking prompted Wisconsin to enact public
financing of its Supreme Court races in 2009, a system that is now under
challenge in the courts.
Jeff Patch, spokesman for the Center for Competitive Politics, which is
challenging the Wisconsin system, says complaints about spending on
judicial races are overblown.
The group does not take a position on whether states should hold
judicial elections, but those that do must not limit the free-speech
rights of voters or candidates, he said.
"Part of our argument is that there isn't a different First Amendment standard for judicial campaigns," Patch said.