As President Obama took the extraordinary step of endorsing a candidate for a state supreme court race this week, spending by outside groups on television ads in all such contests hit a record high nationwide, according to a new analysis by the Brennan Center for Justice.
These developments underscore the growing importance of state courts in national politics and the expanding influence of secret money in targeting judges unfavorable to corporate agendas and other special interests. The millions of dollars spent, much of it without meaningful disclosure or accountability, raise serious questions of conflicts of interest and pose a troubling threat to core values of fairness and judicial integrity.
Outside groups have already spent a record $14 million on TV ads in the 2015-16 state supreme court election cycle, including nearly $3.9 million this fall, according to an analysis of television ad contracts posted on the FCC website, state disclosures, and data from Kantar Media/CMAG.
The prior record for outside groups was $13.5 million in 2011-12, according to tracking by the Brennan Center for Justice. (All figures in this analysis are in 2016 dollars.) State political parties, in contrast, have been relatively minor players this fall, with approximately $188,000 worth of television ad buys in Michigan and Washington (all from the state Republican Party). Recent experience suggests outside spending will continue to surge in the final weeks before Election Day.
“When outside groups pour money into judicial races, it puts our whole system at risk. Our democracy relies on judges to decide cases based on their understanding of the law and the facts in front of them, and not out of fears about their next election,” said Alicia Bannon, Senior Counsel in the Brennan Center’s Democracy Program.
The Republican State Leadership Committee, a corporate-funded group whose mission is to elect Republicans in down-ballot races, continues to be the largest outside spender in supreme court races this cycle. It has spent more than $620,000 on TV this fall in Ohio, in addition to contributing $225,000 to the organization StopSetEmFreeSandefur.com in Montana and donating $43,000 in-kind for polling and research.
To date, the RSLC has spent nearly $4.1 million on six supreme court races during the 2015-16 cycle (counting direct spending as well contributions to other groups), including in off-cycle races in Pennsylvania, Arkansas, West Virginia, and Wisconsin. Another major spender is the Center for Individual Freedom, a Virginia-based group whose mission is to “protect and defend individual freedoms and individual rights,” which has spent nearly $768,000 in TV ad buys in Louisiana and Mississippi.
Likewise, North Carolina Families First, a progressive-leaning PAC that has been a regular player in state legislative races, has purchased ad contracts worth $670,000 in the North Carolina Supreme Court race.
All three groups benefit from secret money – a trend that has proliferated in supreme court elections this year. Only three of the thirteen groups that have spent on television this fall have fully transparent donors: the remaining nine include so-called “social welfare” organizations and business leagues that do not disclose their donors, as well as PACs that list social welfare organizations or other PACs as contributors — making it difficult (or sometimes even impossible) to discern the underlying interests.
Total TV spending in this cycle’s state supreme court races now nears $29.9 million, just short of the 2011-12 record of $35.5 million with roughly two weeks to go before the election. (In total, there are 80 supreme court seats up for election in 2015-16, compared with 75 seats in 2011-12.)
States attracting the most TV spending this fall include: Ohio ($1,514,000.), Louisiana ($1,453,000), North Carolina ($1,414,000), Michigan ($976,000), Mississippi ($751,000), Kansas ($403,000), and Washington ($146,000), which has also seen $115,000 spent on radio advertisements.
The Brennan Center will continue to monitor and analyze judicial election trends this fall, posting data and regular updates on its state supreme court elections page.