A series of reports examining the role of political spending in state court elections issued by the Brennan Center for Justice at New York University School of Law and the Center for American Progress (CAP) show that as our judicial elections become more expensive, the impartiality of our judiciary is at risk.
The New Politics of Judicial Elections 2011-12, written by Justice at Stake, the Brennan Center, and the National Institute on Money in State Politics, analyzed political spending on state judicial races in the past election cycle and concluded that special interest groups and political parties spent an astonishing $24.1 million on state court races in the last election cycle. That is a reported increase of over $11 million since 2007-2008 and represents unprecedented spending in state court battles following Citizens United v. Federal Election Commission (FEC), the 2010 Supreme Court case that lifted limits on corporate political spending.
New Politics of Judicial Elections 2011-12 lists the most expensive judicial elections in the last cycle; unsurprisingly, they happened in states where conservatives were laying siege to the social safety net, reproductive rights, and public institutions. According to the report, state judicial races now seem “alarmingly indistinguishable from ordinary political campaigns—featuring everything from Super PACs and mudslinging attack ads to millions of dollars of candidate fundraising and independent spending.”
saw the most expensive judicial elections during the reporting period. In 2012, conservatives held a 4-3 majority in the state’s supreme court, with three seats up for election. The authors of the Brennan Center report estimate that between $13 million and $18.9 million was spent on those seats, with the court ultimately maintaining a conservative majority. Since that election, Michigan has faced the largest municipal bankruptcy in history, a corresponding fire-sale of public institutions to the private sector, questions about the scope of powers of “emergency managers,” and a relentless attack on reproductive autonomy. These are just some of the issues that could come before the state supreme court, which explains why conservatives funneled so much money into keeping the court in conservative hands.
Not surprisingly, Wisconsin experienced the second most expensive elections
, when a 4-3 conservative majority was also at stake. However, unlike Michigan, the balance in Wisconsin rested on a single seat in 2011, and the race was a part of the battle over Republican Gov. Scott Walker’s union-busting agenda. In addition to stripping collective bargaining rights, Wisconsin Republicans passed anti-family planning laws and a host of reproductive rights restrictions.
Michigan and Wisconsin were followed by Iowa and Florida, which also had local races flooded with national money from donors like the Koch brothers, as conservative groups launched retaliation campaigns targeting specific judges after courts in those states issued rulings affirming marriage equality and ruling against attempts to use ballot initiatives to block the implementation of Obamacare. North Carolina, where lawmakers passed a series of anti-social safety net restrictions—including attacks on voting rights, public education, and abortion access—also saw historic levels of spending in its state court elections.
Who Is Doing the Spending?
Determining just where all the money in these races is coming from can be difficult given the patchwork of state campaign finance disclosure laws, but even with those challenges some familiar names rise to the top. Among the biggest spenders in state court races are the Koch brothers, who financed races in Iowa, North Carolina, Florida, Louisiana, and Texas. Notably, the Koch brothers also had a significant hand in the political battles waged in both Wisconsin and Michigan.
The National Rifle Association-linked Law Enforcement Alliance of America and the National Organization for Marriage (NOM) also are big spenders in state court races. According to the Brennan Center report, NOM spent more than $130,000 in Iowa on television ads alone opposing the retention of Iowa Supreme Court Justice David Wiggins, who was on the court when it authored a unanimous decision affirming marriage equality in the state. Both former U.S. Sen. Rick Santorum and Louisiana Gov. Bobby Jindal campaigned against Justice Wiggins in that race, further highlighting the role of national politics in these local judicial elections.
Big Money Brings Big Problems in State Courts
As both reports make clear, there is a link between political spending by national groups disclosed as local or grassroots and sweeping conservative legislative agendas. And it’s poised to get worse. Earlier this month, the Supreme Court heard oral arguments in McCutcheon v. FEC, a case that challenges individual political spending limits and has been described as Citizens United 2.0. Both Citizens United and McCutcheon have as their chief legal advocate James Bopp Jr., a long-time anti-abortion, anti-marriage equality advocate and a key link between “dark money” and regressive conservative politics. Now we’re able to trace the impact of that money and its effect on state court rulings. The news is not good.
According to CAP, “state supreme courts are more likely to rule for the state as the amount of money in high court elections increases.” The presence of outside money and hidden donors exacerbates this problem, since, according to CAP, those groups are more willing to spend money on negative advertising designed to whip up voter fears like releasing dangerous criminals. To get to this conclusion, the CAP report looked at seven state supreme court elections where spending exceeded $3 million for the first time between 2000 and 2007 and examined rulings from those courts in the five years prior and after those expensive elections. According to CAP, “[t]he findings were clear: As campaign cash increased, the courts studied began to rule more often in favor of prosecutors and against criminal defendants.”
That is an ominous conclusion, given the increased role state supreme courts have had in determining the boundaries between policing pregnant women and the manipulation of criminal statutes to create fetal “personhood” rights. For example, in 2003, then Alabama Chief Justice Roy Moore was removed from office by a panel of state judges after Moore refused a federal court order to remove a Ten Commandments monument from the state judicial building. In 2012, thanks to heavy turnout among supporters of Republican presidential primary candidates Rick Santorum and Newt Gingrich, Moore was reelected chief justice after spending millions campaigning. While Moore’s reelection didn’t shift the balance of the court, it did solidify a conservative majority that earlier in the year had invented fetal “personhood” rights in the state’s chemical endangerment statute.
Similar threats exist in Wisconsin, as the Beltram case shows, and in Indiana, where the state’s high court allowed the prosecution of Bei Bei Shuai under the state’s feticide statute to move forward. And while battles over abortion restrictions are typically fought in federal court, as Wisconsin, Alabama, Mississippi, and Indiana show, many of the attacks on reproductive autonomy happen in the state court system. Whether through criminal courts, family courts, or some combination of both, it is the state judiciary, more so than the federal courts, deciding how far states can go in policing pregnancy and surveilling women and communities of color.
We will know this summer when the Roberts Court issues its ruling in McCutcheon whether this landscape
has gotten worse. But regardless of how the Roberts Court rules, we have every reason to expect big money in our state court races is here to stay. With state courts wading deeply into the marriage equality debate, it is reasonable to expect more retaliation campaigns like those in Iowa and Florida should conservatives be unhappy with the results. Add to that tab the amount in legal fees conservative state administrations are racking up defending in federal court the record number of attacks on reproductive rights and it’s clear that there is no price too high for the right when it comes to enforcing their agenda. Unfortunately, it’s coming at the cost of an impartial judiciary and the last lines of defense against unchecked state power.