Justice for sale? More money flowing to judicial elections

North Carolina in April isn’t usually the focus of much political activity, but that changed this year when viewers around the state started seeing this TV ad.

Until that point, state Supreme Court judge Robin Hudson had been used to judicial elections that many described as “sleepy,” where it was as much work mobilizing people to vote at all as it was mobilizing them to vote a certain way.

Then the ad aired, accusing Hudson of being “not tough on child molesters,” and what had traditionally been a quiet and personalized judicial election for North Carolina changed to a loud and partisan one. And it may have changed judicial elections in the state forever.

Spending on judicial election campaigns has reached record highs in states around the country this year, fueled in large part by an influx of outside money from special interest groups. Like the ad targeting Hudson earlier this year – a so-called “issue ad” paid for by conservative Super PAC Justice For All NC, not authorized by any candidate – outside groups are spending millions of dollars around the country to unseat certain judges they think could rule against their interests in court.

Candidates for North Carolina’s Supreme Court have raised a record breaking $5.2 million in campaign funds this election cycle, according to the Brennan Center for Justice and Justice at Stake. Outside groups have spent over $12 million on TV ad buys in 10 states since January, according to the two groups, with nearly $1 million being spent on five of these states in the last week alone.

These attacks have prompted candidates themselves to campaign round the clock for funding in response, and the increasingly politicized judicial election climate has people worried that the impartiality of state courts could become politicized as well.

Bert Brandenburg, executive director of Justice at Stake, says the growth in money and politics around state judicial elections are “pressuring judges to become politicians in black robes.”

“A lot of judges are feeling trapped,” Brandenburg says.

“You can ask someone to be a judge, you can ask someone to be a politician, you should not ask someone to be both,” he adds. “What this money is doing is that it’s eroding that insulation that is designed to keep politics out of the courtroom.”

The millions being spent on state judicial elections may pale in comparison to legislative election spending this midterm election, which totals well over $1 billion for the 2013-14 election cycle, according to OpenSecrets.org, but many consider state judicial elections a completely different animal to their legislative and gubernatorial cousins. Some people also worry that state courts now appear to be “for sale,” that the number could increase significantly in the future.

Judicial elections rules vary from state to state, but 38 states in the US elect their Supreme Court judges in some way. Some states have executives or special committees appoint justices when seats open up, and then require them to run for reappointment in individual “retention” elections when their term expires. Other states require sitting judges to run against other candidates. In some states these contested elections are non-partisan, with candidates running independent of any political party. In other states these elections are partisan.

But the nature of judicial elections also makes the relatively small amounts of money being spent on them go a long way. Judicial elections are typically “low-information” races, according to Chris Kromm, director of the Institute for Southern Studies, where most people know little about the candidates. The lack of a visible “platform” for judicial candidates has also led to outside groups funding attack ads that target specific decisions judges have made.

As a result, Mr. Kromm says, a judge could be hearing a case and not thinking about what makes the best decision, but what could end up in an attack ad when they next run for office.

“They make hundreds of decisions throughout their career and any one could be misinterpreted,” Kromm adds. “That’s a hell of a thing for these judges to be thinking about when making a decision.”

For the judges themselves, the specific brand of judicial election matters less than the amount of money that’s spent on them.

Michigan had the most expensive Supreme Court race in the country in 2012, with outside groups spending $13.85 million on issue ads that year. Five candidates are competing for two seats on the state Supreme Court this year, all nominated by political parties. And after leading the country in TV ad spending in 2012, Michigan is leading the pack again this year with over $4.3 million in total TV ad spending.

The Virginia-based Center for Individual Freedom spent around $146,000 last week on an ad supporting Republican Justices David Viviano and Brian Zahra for “throwing the book at violent child predators,” according to Kantar Media/CMAG. The Michigan Republican Party itself has spent over $2.3 million on TV ads this year, according to the Brennan Center and Justice at Stake.

Justice William B. Murphy, a Democratic candidate and incumbent, says the partisan nature of judicial elections in Michigan isn’t the problem. Murphy is more worried that the growing influence of outside money – and the personal fundraising response from judges and their campaign committees – could erode the public’s trust in a judge’s impartiality.

In its endorsement of Judge Murphy earlier this month, the Detroit Free Press noted that since this will likely be Murphy’s last eight-year term as a Supreme Court justice, his judgment “will be unconstrained by anxieties about his political future” on a court that is “still struggling to assert its independence from special interests and partisan politics.”

“I’ve been a judge for 26 years and I’ve been independent and tried to make decisions based on what the law is,” Murphy says in an interview with The Monitor.

If he were elected to what would be his last term, he adds, “I won’t have to be concerned about making decisions that would impact people I’d have to rely on for support down the road.”

Big-money super PACs now appear to be entering state judicial races.

The Koch brothers-linked conservative dark money group Americans for Prosperity has sponsored TV ads attacking Justice Mike Wheat in Montana for his “extreme politics” and “history of supporting extreme partisan measures.”

American Freedom Builders, a conservative advocacy group with national ties and a strong connection to Ohio Governor John Kasich (R), has spent over $350,000 on TV ads to run through Election Day.

The mounting tide of outside money now has judges working round the clock to raise money to compete. Robin Hudson says she’s now working “two full-time jobs,” one as a judge, the other as a fundraiser.

But the visible effect campaign funding has on a judge’s decisions is harder to quantify.

There are a handful of notable cases where judges appear to have ruled in favor of parties who supported them during elections. 

In West Virginia in 1998 the chief executive of the A.T. Massey Coal Company set up a non-profit group called “And for the Sake of the Kids” and used it to funnel over $3 million into unseating a state Supreme Court justice about to preside over a lawsuit against the company. The incumbent judge lost and his replacement ultimately helped overturn the $50 million suit.

In Illinois the outside group Campaign for 2016 recently ran two TV ads attacking Supreme Court Justice Lloyd Karmeier for overturning multimillion dollar judgments against Philip Morris and State Farm in two high-profile cases after the companies reportedly “push[ed] four million dollars” into Justice Karmeier’s 2004 election.

And a recent report from Emory University School of Law and the American Constitution Society concluded that the more TV attack ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants.

The study points in particular to the 2010 Citizens United decision by the US Supreme Court that declared it unconstitutional to restrict the spending of outside groups on state elections.

“These findings are likely to be only a preview of escalating trends in judicial campaign finance and elections,” the study concluded. “Outside groups, whether funded by corporations, unions and wealthy individuals have only begun to professionalize their operations and will only grow more sophisticated in the years to come.”

New rulings on judicial campaign laws could also impact judicial elections in the future.

In January the US Supreme Court is scheduled to hear a case from Florida that could eliminate rules in 30 states that ban judicial candidates from personally asking for money, opening up another avenue for funding to enter judicial campaigns.

For Robin Hudson, the North Carolina judge targeted earlier this year by the first judicial primary election ad funded by outside sources to air in the state’s history, the new waves of spending are in sharp contrast to the spending limits the state required from 2004 to 2012.

In 2004 the state established a public campaign fund for judicial elections designed to replace judges campaigning for themselves – and the ethical questions that can raise.

The program allowed judicial candidates to access the public campaign funds if they could raise contributions of $10-$500 from at least 350 registered voters, adding up to at least $39,450, and ended up slashing the percent of campaign funds supplied by attorneys and special-interest groups from 73 percent to 14 percent, while increasing the share from individual donors.

North Carolina’s public campaign fund was praised as a model program for the nation, but was repealed in 2013 by the state’s Republican governor and Republican-controlled legislature.

Indeed, many experts are characterizing the increased financing of state judicial elections as a way for single parties to gain control of all three branches of government in states. With 36 states now controlled by a single party – 23 by Republicans and 13 by Democrats, the most states under single-party rule in six decades – experts are worried that it’s only a matter of time before state courts go a similar way.

There appear to be as many potential solutions as there are unique judicial election rules in states. North Carolina’s public campaign fund is a popular proposal, as is having judges appointed by the executive or a special, non-partisan committee.

Hudson believes the problem starts, and could even end, with reducing the influence of outside money on state judicial elections. That would require either the US Supreme Court overturning its Citizens United decision, or Congress passing a Constitutional amendment.

“There isn’t really any other alternative, states can’t really do anything about it,” Hudson says.

The attack ad leveled against her in the spring ended up backfiring. Hudson won her primary and will be on the ballot in this week’s election.  Ultimately, she thinks this could be the only way to stop millions of special interest dollars flowing into judicial elections.

“It seems like the one thing that might make it stop is if it stops working,” she adds. “Maybe they will figure that in judges races [attack ads] are a bad idea.”

[Editor's note: The original version misstated the amount of money spent on the North Carolina race.]