With the nation's highest court dominated by right-wing appointees reversing legal precedents protecting people's rights and kicking issues to states, having fair state supreme courts is more important than ever.
But fair courts in the states are being targeted by some of the same right-wing dark money forces that have captured the U.S. Supreme Court.
A June report by the Brennan Center for Justice found that in 2022 so far legislators in at least 25 states had introduced more than 70 bills that would politicize or undermine the independence of state courts-a growing assault on fair courts.
Take Kansas, for example. This summer, Kansas voters resoundingly rejected a ballot measure, pushed by the Catholic right-wing and other groups closely affiliated with Leonard Leo, trying to overturn the Kansas Supreme Court's 2019 ruling affirming state legal precedents that the state Constitution protects the right to access abortion. But that referendum was not the only attack on that court's independence by right-wing operatives waging a war of attrition against the state's fair courts. The state legislature nearly passed a measure that sought to eliminate merit selection, long a target of the far-right, because having an independent body assess the qualifications of potential judges can help ensure that appointees have reputations for fairness rather than a track record of partisanship or bias.
That's not all. Right now, in Kansas, the religious right which bankrolled the failed amendment coalition called "Value Them Both" to the tune of $6.7 million (much of which has come from the Catholic Church), are opposing retention of five of the six state supreme Court justices sitting for re-election. (They support anti-abortion judge Caleb Stegall, a former attorney for Charles Koch's Americans for Prosperity, and counsel to far-right governor Sam Brownback who installed Stegall as a judge.) Allied groups, like "Kansas For Life," have long sought to oust members of the court for its rulings following legal precedents on education and abortion. Those efforts include a large-scale $2 million push by a dark money group calling itself "Kansans for Justice" in 2016 that ultimately failed, but moved the needle on the percentage of voters opposing retention.
Another major threat looms in Alaska, where voters will decide whether or not to hold a state constitutional convention, which would open the door to eliminating merit selection in the state widely seen as a leader in judicial independence. Nationally, Charles Koch funded groups like ALEC and right-wing special interests have ramped up their campaigns for a federal constitutional convention to give a majority of Republican-led states the power to radically rewrite our founding document to conform to their extreme agenda.
This public attention on state courts and the appointment process may be new, but the dark money effort to control them is not. Leonard Leo-through the Judicial Crisis Network/Concord Fund (JCN/Concord) and the Republican State Leadership Committee (RSLC), which orchestrated the REDMAP operation in 2010-has been targeting state courts through judicial elections and attempts to eliminate merit selection for decades.
This is no accident and is the result of seeds planted years ago. In 1971, shortly before he was named to the U.S. Supreme Court, tobacco lawyer Lewis Powell put a marker down in the blueprint he penned for the U.S. Chamber of Commerce on the importance of the courts to right-wing big money. In the Powell Memo he emphasized that "the judiciary may be the most important instrument for social, economic, and political change."
RSLC has been the biggest spender in judicial elections in recent years. In 2014, the group created a subsidiary, dubbed the "Judicial Fairness Initiative" (JFI), to influence judicial elections because independent state courts devoted to following precedent had become a barrier to the GOP's political and policy agenda. Since then, it has spent more than $21 million to influence judicial elections in Michigan, Ohio, Pennsylvania, Wisconsin, and others, often more than an individual judicial candidate has raised and spent. In February, RSLC announced its plans to shatter previous spending on state court races this year.
As a "527 group" under the IRS code, JFI is required to disclose its donors but what that really means is the JFI is a vehicle for obscuring which RSLC donors are really funding its campaigns to install right-wing activists on state courts. JFI's only disclosed donor, ever, is... surprise: RSLC. We know, however, that groups tied to the court-obsessed Leo have made donations right before similar amounts were transferred to JFI.
Meanwhile, JCN/Concord is just another shell for passing money from other Leo-tied groups, designed to keep the true donor secret-although as of August we know Leo's agenda has been bankrolled in the form of a $1.6 billion dollar transfer to a trust controlled by Leo through a 90-year old Chicago billionaire named Barre Seid.
True North Research has documented how Seid secretly (to the public) underwrote legal briefs for Republican State Attorneys General to the U.S. Supreme Court. Seid has been tied to funding climate change denial, anti-abortion candidates, and anti-Muslim propaganda, as well as securing Leo's berth as a key decisionmaker at the public-funded George Mason University's Scalia School of Law, the DC-area law school that secures posh summer gigs abroad and away from the DC heat for Trump Supreme Court appointees, namely Brett Kavanaugh (England) and Neil Gorsuch (Italy).
Notably, the transfers from RSLC to JFI often occur right after the deadline for disclosing primary donations, but then due to the timing of filing deadlines don't get reported federally until after the general election for those judges. This has allowed JFI to stealthily scope out scorched earth-ad buys in the week before the general election-spending more in a few days than the candidates themselves raised and spent all year.
There is no way any candidate could counter those last-minute attacks without reserving almost their entire campaign's fundraising for spending in the last week and no way with campaign finance limits to raise that much on the spot, cut the ads, and place them in time.
RSLC--JFI's playbook, or should we say Leo and his billionaire benefactor(s)--reflects a real gaming of the virtually broken "campaign finance"/anti-corruption system. But the good news is that these tactics do not always prevail.
The lack of real-time transparency and real transparency about the true original funders makes it impossible for voters to know for sure who is funding the judicial spending, but the need-to-be-reformed IRS filing requirements shed some light. For example, we know that JCN/Concord has given RSLC nearly $2 million so far this year, most of that coming in late September. That does not include any money transferred in the fourth quarter of 2022, which will not be revealed until after the upcoming election.
We've seen this playbook before. In Wisconsin, for example, filings showed that in March 2019, RSLC received $1 million from JCN. The network was conceived by Leonard Leo, the co-chair of the Federalist Society, who oversees a sprawling dark money operation that raked in hundreds of millions of dollars before the 2020 election. Since 2012, JCN has been a top funder of RSLC (contributing at least $8 million) and spent directly to shape state courts where relatively small sums have an outsized influence. At the same time, JCN has been the leading source of dark money supporting the Trump nominees to the U.S. Supreme Court.
In the week following that March 2019 transaction, RSLC sent $1.1 million to JFI, which then spent over a million on TV ads that ran the week before Wisconsin's April supreme court election. The ads said they were paid for by RSLC but made no mention of where its parent group got its money. RSLC later crowed that its spending swept its preferred candidate onto the Wisconsin Supreme Court, winning by .5%
In Pennsylvania's 2021 Supreme Court race, RSLC used a similar strategy where it ultimately spent over $1.6 million backing Kevin Brobson who won a seat on the court last November.
This year, another group-which is tied to the Restoration PAC and GOP mega-donor Richard Uihlein-is playing a major role. It calls itself "Fair Courts America" (FCA/Uihlein) co-opting the language of fairness.
FCA/Uihlein even spent money in a lower court race for the Wisconsin Court of Appeals in 2021 alongside RSLC/JFI. FCA/Uihlein has spent on ads in the Kentucky (along with RSLC) and Illinois Supreme Court elections-as well as in the primary for the Texas Supreme Court and even a prosecutor's race in Arkansas, where the group took in an additional $100,000 from local chicken magnate Ronald Cameron. It is apparently very chummy among these groups with different public facing names but a common agenda: Arkansas filings for FCA/Uihlein list RSLC-JFI vice-president Andrew Wynne as the executive director of the group.
Another document outlines FCA/Uihlein's ambition to spend over $20 million on races this cycle in several states, cumulatively. While most of that spending has not yet materialized, we are now one week before election day, so FCA/Uihlein's cash bomb may be in the works. Since RSLC-JFI was launched in 2014, it has spent $21 million total, so if FCA/Uihlein spends $20 million this cycle that would blow previous records out of the water.
In North Carolina, another dark money group that is calling itself "Tough and Fair Judges" (TFJ) has already weighed in during the Supreme Court primary and now is hitting Justice Sam Ervin IV as a supposed "liberal Democrat insider," even though he has served as a well-regarded appellate judge for the past 14 years. TFJ's sole known funder calls itself the "Good Government Coalition" (GGC), but GGC is heavily bankrolled by RSLC and the North Carolina Chamber of Commerce. It too is run by longtime RSLC operatives. Another group spending on the court race there is calling itself "Stop Liberal Judges" (SLJ) also appears to be a shell for RSLC funds through a group that itself is funded by GGC. This dizzying alphabet soup of front groups seems almost designed to confuse or mislead voters.
Also notable is Ohio, where the state's independent supreme court has followed legal precedents on redistricting that the state's runaway right-wing legislature is openly ignoring by drawing extreme partisan maps in defiance of the law. A myriad of very special dark money interests-including the Susan B. Anthony List, Ohio Right to Life, and the business lobby-are preparing to wage an expensive campaign to keep the court in GOP hands. But they are not alone, RSLC-JFIhas spent $2 million on TV ads backing the three Republicans running for the bench.
And in Montana RSLC-JFI recently spent $500,000 tarring Justice Ingrid Gustafson. Gustafson's opponent is James Brown, who was backed in the primary by $150,000 in outside spending by... RSLC-JFI, of course. Brown notoriously represented a right-wing dark money called Western Tradition Partnership a decade ago when it violated multiple state disclosure/anti-corruption laws.
Also coming to Brown's aid is right-wing operative Jake Eaton who filed baseless ethics complaints on behalf of his group, which has received funding from RSLC, against Gustafson. Eaton reportedly worked closely with GOP Rep. Barry Usher (himself the listed treasurer of RSLC-JFI Montana PAC in older filings) on drafting a bill which would have amounted to a judicial gerrymander in the state by eliminating statewide election of Supreme Court justices to give more sparsely populated parts of the state even more disproportionate say on the state's highest court. Or, as Usher described it, "I think it would help get our Supreme Court a little more aligned with our electorate," not all of the electorate. RSLC is not a new connection for Eaton. In 2016, he was treasurer of a group attacking justice Dirk Sandefur that was almost entirely funded by RSLC, which broke public disclosure laws by failing to report its funding.
Notably, Brown is backed by Gov. Greg Gianforte, a former House rep who may be most famous for body-slamming a reporter in 2018. Brown is also backed by Montana Attorney General Austin Knudsen, who has assailed the state judiciary in recent years for following precedent and standing up to his party's extreme agenda. Guess who has been the biggest funder of the Republican Attorneys General Association (RAGA), which funnels money into races for state AGs like Knudsen? JCN/Concord, that is Leonard Leo's web. RAGA itself is a spin-off of... RSLC, of course.
As the Brennan Center has documented, these kinds of dark money operations engulfing our state judicial systems are already having an effect on who sits on our state courts and how they operate. This includes both the quality of justice, meaning the politicization of the courts in their rulings, as with the Wisconsin Supreme Court, and the diversity of the bench. The scorched earth attack ads designed by such groups also likely deter fair-minded people from seeking those offices and having their reputations smeared by unaccountable dark money.
All of this harms the quality of justice and the legitimacy of courts in the eyes of the public. In our view, dramatic changes in disclosure laws and other anti-corruption measures are long overdue.
