The New Politics of Judicial Elections 2000-2009: Decade of Change

Abstract

lion to elect a West Virginia justice.The disparity suggests that a small number of special interests dominated judicial election spending even before the Citizens United case ended bans on election spending by corporations and unions.In 2007-08, five states felt the worst blast of the super spender phenomenon.When TV spending by political parties and special-interest groups is factored in, Pennsylvania broke the $10 million barrier, while spending reached $8.5 million in Wisconsin.Texas and Alabama each topped $5 million, and Michigan, which had just under $5 million in fundraising and independent TV ads, witnessed some of the cycle's most brutal campaign commercials.Partisan races drew the most cash, but that may be changing.Candidates in partisan Supreme Court elections raised $153.8 million nationally in 2000-09, compared with $50.9 million in nonpartisan elections (retention election candidates raised $2.2 million).But in some states, notably Wisconsin in 2007-08 and Georgia in 2006, nonpartisan races have been just as costly and nasty as their partisan counterparts.Special-interest money sometimes comes with a cost.National business groups, often working with state affiliates, were the decade's most powerful force.But three well-funded incumbent chief justices were ousted in 2008, in part because they were tied to special-interest patrons.The trends continued in 2009.In Pennsylvania, Wisconsin and Louisiana, candidates and independent groups spent a total of about $8.7 million on 2009 elections.And in each race, candidates accused opponents of being ethically tainted. Court TV: The Rise of Costly Attack AdsSpending on TV ads has helped fuel the money chase.From 2000 to 2009, an estimated $93.6 million was spent on air time for high court candidate TV ads.That total includes TV spending in odd-numbered election years, which for the first time is included in the New Politics data. New records were set in 2007 and 2008.Including costly 2007 elections in Wisconsin and Pennsylvania, the 2007-08 cycle was, at $26.6 million, the most expensive biennium ever for TV ad spending on Supreme Court races.Eight states set all-time records for spending on TV ads during the two-year period, and there were more ad airings than ever before in 2008.Average spending on TV continues to surge.Continuing a trend seen in 2004 and 2006, in states where TV advertisements ran, an average of more than $1 million was spent on campaign ads.In 2008, in the 13 states where Supreme Court ads aired, the average was $1.5 million.Outside groups played a critical role in the TV wars.Special-interest groups and party organizations accounted for $39.3 million, more than 40 percent of the estimated TV air time purchases in 2000-09.In 2008, special-interest groups and political parties accounted for 52 percent of all TV spending nationally-the first time that noncandidate groups outspent the candidates on the ballot.Special-interest group ads are often harsher than candidate ads.Independent groups remain the "attack dogs" of judicial TV ads.But in 2008, Wisconsin Judge Michael Gableman's spot attacking Justice Louis Butler provoked lingering ethics and legal challenges.See more of this ad on page 35.The New Politics of Judicial Elections: 2000-2009 Who Played?Who Won? Tort wars have become court wars.Judicial elections have become a multi-million-dollar duel, pitting business and conservative groups against plaintiffs' lawyers and unions.High court justices know that their decisions could trigger support or retaliation in the next election.The two sides bring starkly different profiles.The right has brought together big-name groups like the U.S. Chamber of Commerce and National Association of Manufacturers, leaders of corporate giants such as Home Depot and AIG Insurance, and political actors like Karl Rove.Bankrollers on the left tend to be wealthy plaintiffs' lawyers, who often use state party organizations to hide the extent of their financial backing of a candidate. Secret money dominates; players can give big sums with little publicity.In Alabama, the Montgomery law firm of Beasley Allen gave more than $600,000 to Judge Deborah Bell Paseur's unsuccessful Supreme Court campaign, without ever appearing on her contribution records.This approach has been emulated in other states, including Texas. Litigation: The Battle Inside the CourtroomFederal courts have been increasingly pulled into state judicial election controversies, especially in the areas of campaign finance, candidate speech and recusal (when a judge avoids a case with potential ethical conflicts).Many of these cases are designed to strengthen or challenge rules that would insulate judges from special-interest pressure.The U.S. Supreme Court declared that campaign spending could disqualify a judge from cases involving major supporters.The landmark Caperton v. Massey decision creates an incentive for every state to craft meaningful rules for when judges must step aside.Campaign finance laws face growing litigation challenges.North Carolina's judicial public financing law was upheld by the federal courts.But a more recent Supreme Court case, Citizens United v. Federal Election Commission, overturned longstanding bans on election spending from corporate and union treasuries-posing a special threat in judicial elections.A 2002 Supreme Court decision, Republican Party of Minnesota v. White, loosened restrictions on judicial campaign speech.Interest groups are using questionnaires to pressure judges into signaling courtroom decisions on the campaign trail.Professional norms are becoming more important in helping judicial candidates steer clear of special-interest pressures and political agendas.

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