Outside Spending Floods Judicial Elections at Record Levels, Report Finds

Special-interest groups and political parties spent an unprecedented $24.1 million on television ads and other election materials in state court races in 2011-2012, according to a new report by the Brennan Center for Justice at NYU School of Law, Justice at Stake, and the National Institute on Money in State Politics.

The report, The New Politics of Judicial Elections 2011-12: How New Waves of Special Interest Spending Raised the Stakes for Fair Courts, provides a comprehensive look at 2011-2012 state Supreme Court elections. In the first full election cycle since Citizens United, an explosion of independent spending helped fuel the costliest election cycle for TV spending in judicial election history and posed grave new threats to fair and impartial justice in America.

Among the report's key findings:

• Non-candidate groups (including political parties) pumped in 43 percent of all funds spent on state high court elections ($24.1 million out of $56.4 million in 2011-12), compared to 22 percent ($12.8 million) in the last presidential election cycle. Super PACs and other outside groups funneled big spending into some state judicial elections for the first time.
  
• Thirty-five percent of all funds spent on state high court races, or $19.6 million, came from just 10 deep-pocketed special interest groups and political parties, compared to $12.3 million, or 21 percent, coming from the top 10 "super spenders" in 2007-08.
  
• A record $33.7 million was spent on Supreme Court campaign TV ads, far exceeding the previous record of $26.6 million in 2007-08. Negative TV ads aired in at least 10 states.
  
• National politics invaded judicial races in 2011-12. In Iowa, TV ads referenced marriage equality; in Florida, the federal Affordable Care Act; and in Wisconsin, collective bargaining rights.

Surging independent spending means less transparency as to who is seeking to influence court outcomes, leads to nasty and misleading attack ads, and contributes to a perception that justice is for sale.

"Special-interest spending in judicial elections has turned into an arms race," said Alicia Bannon, Counsel at the Brennan Center for Justice and lead author of the report. "The American people need to know that judges are deciding cases based on the law, not on who spent the most money to support their campaign."

"Our courts are supposed to be a safe place for impartial justice, but campaign cash and political pressure are threatening to tip the scales," said Bert Brandenburg, executive director of Justice at Stake. "If Americans start thinking of judges as politicians in robes, our democracy is in trouble."

The report also found fierce legislative attacks on merit-based systems for judge selection, including bruising anti-retention campaigns in Florida and Iowa, two states that use merit selection to appoint judges. Florida, a national political bellwether state, experienced record spending by all sides when three state Supreme Court justices stood for retention. On Election Day 2012, however, voters retained the three Florida justices and a challenged justice in Iowa. Voters also rejected ballot measures in three states to give politicians more power over the courts.

Looking ahead, the report warns of further legislative attacks on reforms designed to protect fair courts as well as harmful spending trends. According to the report, "Perhaps most disturbing of all, ... is that while independent spending on state court races ballooned in 2011-12, it still has room to grow. ...[F]uture years may see an even greater expansion in independent spending by interest groups and parties in judicial elections."

The New Politics of Judicial Elections reports, produced biennially, have monitored election spending and other threats to the impartiality of state courts since 2000.

Read the New Politics report here.