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'Has the politicization of state Supreme Court elections actually skewed justice? A growing body of research suggests that intense politicking in judicial elections around criminal justice issues may in fact be influencing decision-making on the bench.' (Photo: ThinkStock)

Money Flooding State Court Elections Threatens the Promise of Equal Justice

Special interest money is flooding into our state Supreme Court elections, gravely threatening the impartial justice that our Constitution promises -- and raising troubling questions about whether courtroom decisions are for sale.

This fast-growing trend in American politics, spurred in part by the U.S. Supreme Court's Citizens United v. Federal Election Commission ruling in 2010, puts our system of justice at risk. When judges are pressured to answer to deep-pocketed special interests, disillusioned citizens may perceive them as little more than politicians in robes.

And when special interest groups air grisly TV ads accusing judges of being soft on crime or attacking them for decisions in controversial cases, those judges may find themselves especially vulnerable to election pressure.

"There's nothing wrong with robust political debate. But if money affects a judge's decision in court, it violates the Constitution."

Consider the startling transformation of state Supreme Court elections in recent years. Traditionally sleepy and low-cost affairs, these high court elections have become politicized, expensive, and dominated by powerful special interests.

In 2011-12, the first full election cycle after Citizens United, interest group spending in judicial races rose dramatically. Interest groups alone pumped a record $15.4 million into TV ads and other electioneering in these high court races, more than 50 percent higher than the previous record.

Another record fell in 2013-2014, when interest groups seeking to shape courts to their liking accounted for more than 29 percent of total spending. That surpassed the previous record level of 27 percent in the previous cycle, according to Bankrolling the Bench: The New Politics of Judicial Elections 2013-14, a recently released study from the Brennan Center, Justice at Stake, and the National Institute on Money in State Politics.

When spending by political parties is included, outside spending as a portion of total spending rose to 40 percent, a record for a non-presidential election cycle. Our research found that more than $34.5 million was spent on state Supreme Court elections in 19 states, with such national groups as the Republican State Leadership Committee, Americans for Prosperity, the Law Enforcement Alliance of America, and American Freedom Builders among the special interest spenders.

State Supreme Courts are attracting this deluge of money in part because they have become a major battleground in the hard-fought tort wars that pit business interests against plaintiffs and their lawyers. But these groups' agendas aren't always apparent when voters see brass-knuckle TV ads -- especially when the ads attack judicial candidates for issues unrelated to tort law. In 2013-2014, a record 56 percent of TV ad spots discussed the criminal justice records of judges and candidates. Many of these ads were sponsored by business interests and plaintiffs' lawyers with little apparent interest in criminal justice reform.

Has the politicization of state Supreme Court elections actually skewed justice? A growing body of research suggests that intense politicking in judicial elections around criminal justice issues may in fact be influencing decision-making on the bench.

There's nothing wrong with robust political debate. But if money affects a judge's decision in court, it violates the Constitution. Even the appearance of a flood of money into judicial elections threatens Americans' confidence in the impartiality of the courts. Almost 9 in 10 Americans said in our 2013 poll they believe campaign cash is influencing courtroom decisions.

What's more, much of the outside spending in judicial elections comes from groups that are allowed to conceal their donors, leaving the public in the dark about who's trying to shape our state courts.

Yet despite these threats to the integrity of our courts, states have been slow to respond. Few states have reconsidered how they select judges, or taken steps to mitigate the influence of money in judicial elections. Reform is needed to help restore confidence that everyone, not just a select few, gets fair and impartial justice when they walk through the courthouse door.

© 2021 Brennan Center for Justice

Alicia Bannon

Alicia Bannon serves as Senior Counsel for the Brennan Center’s Democracy Program, where her work focuses on judicial selection and promoting fair and impartial courts.

Scott Greytak

Scott Greytak serves as Counsel for Free Speech for People. He is a social justice attorney with a life-long devotion to equity and opportunity for all, with a background in advocacy, policy development, litigation, state- and local-level campaigns, and academic scholarship.

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