Secret Money Floods Judicial Elections

By Dorothy Samuels and Alicia Bannon, The American Prospect

30 September 16

Unlimited, undisclosed spending is playing an ever-greater role in state supreme court races, undermining the fairness of the courts and putting judges at risk of conflicts of interest.

ohn Paul Stevens called it right. Dissenting in 2010 from the Supreme Court’s notorious Citizens United ruling to overturn limits on big spending in campaigns, the now-retired Supreme Court justice warned that the decision’s toxic implications would extend beyond ordinary political contests to the elections that fill powerful state supreme court seats.

Discomfiting figures from the latest round of state judicial races bear out that grim forecast. Of the 39 states that hold judicial elections, 27 feature supreme court races this November, and the money is flowing freely.

The same seamy money game that defines races for political office post-Citizens United—unlimited spending by special interests and barrels of secret money—has also invaded contests for the courthouse. It is an alarming development. And it is getting steadily worse.

So far in 2016, seven states—Arkansas, Idaho, North Carolina, Ohio, Texas, Wisconsin, and West Virginia—have held a state supreme court race in which at least one television ad was broadcast. (Some were primaries and some were early general election contests.) Increasingly, those judicial races are dominated by distorting attack ads and underwritten by influence-seeking groups, according to an analysis by our group, the Brennan Center for Justice.

The upshot: a deepening threat to judicial integrity and to the nation’s core principle of fair and impartial courts. 

Even before Citizens United and its progeny, wealthy interests with business before the courts were pushing judicial campaigns over the top. Since the 2010 ruling, however, outside groups have become central players, while the role of candidates in defining the tone and content of their own campaigns has shrunk. New loopholes allow big spenders to get around caps on direct contributions to judicial candidates and disclosure requirements. Broad secrecy has made the money trail a lot harder, if not impossible, to follow, and in many cases, the purported separation between “independent” groups and the candidates they back seems like little more than a convenient fiction.

A whopping 70 percent of outside television spending in completed state supreme court races so far this year came from so-called dark-money outfits, which do not disclose their donors. Secret money is particularly problematic in judicial races because it not only skews voters’ choices, but also obscures significant conflicts of interest in legal cases involving big donors who helped elect a judge hearing the case.

In all, judicial candidates were responsible for only 35 percent of television spending in this year’s early state court contests, compared to 42 percent overall in the 2013-14 election cycle.

The resulting conflicts of interest pose a vexing challenge. All the secrecy makes it hard to identify conflicts to begin with. And even when donations are publicly disclosed, lax state recusal rules mean judges often preside over cases involving major campaign supporters, raising real doubts about their impartiality. For instance, a key aspect of The Guardian’s recent disclosures involving the so-called John Doe investigation into alleged campaign-finance violations committed during Wisconsin Governor Scott Walker’s 2012 recall election is the role played by state supreme court justices in the case.

The state supreme court rejected allegations that secretive tax-exempt groups had illegally coordinated with Governor Walker’s campaign committee. Yet some of those same nonprofits had also helped elect justices on the Wisconsin supreme court majority that not only shut down the Walker investigation, but also ordered the destruction of all documents in the case. Two justices declined a special prosecutor’s request that they recuse themselves, giving rise to an appeal to the U.S. Supreme Court. The Court will decide shortly whether to take up this judicial ethics (and campaign-finance) travesty. (The Brennan Center filed an amicus brief calling for the Court to take the case.)

The big money now pouring into state supreme court contests in 2016 sets the stage for more potential post-election conflicts of interest like the ones seen in Wisconsin. Court rulings could be affected. The danger is that judges and judicial candidates now campaigning in Kansas, Montana, North Carolina, Ohio, Washington state, and elsewhere will feel debts of gratitude to their financial supporters or hesitate to issue rulings that may make them targets in future elections.

The Supreme Court’s erroneous campaign-financing jurisprudence has negatively affected the nation’s politics as a whole. But it’s also undermining the appearance and reality of honest, even-handed decision-making at the state court level, where 95 percent of the nation’s legal cases are filed. Whatever reconfigured Supreme Court emerges after the November election must make overhauling this corruptive campaign-financing gauntlet a priority. And states must rethink whether elections flooded with influence seekers’ money and ugly attack ads are really the best way to choose judges.