Partisan rancor and an arms race of special interest spending in judicial elections reached new heights this cycle, as the record for TV spending by outside groups in state supreme court races was shattered, reaching nearly $20 million, according to a new analysis by the Brennan Center for Justice.
With heavyweight figures like Barack Obama and Bill Gates taking often unprecedented steps to weigh-in on judicial races with their prestige or dollars, the state judicial selection process has become more overtly partisan and politicized, threatening the essential role courts play in ensuring fair and impartial justice, accountability, and a democracy free of undue influence.
Despite the deluge of outside money, most incumbent justices hung onto their seats — in some cases because they too were the beneficiaries of heavy spending in their favor. Ten states saw television spending in excess of $1 million, including North Carolina, where a high-profile election rife with tensions over racial gerrymandering resulted in the defeat of a Republican incumbent and the prospect of a Democratic majority on the high court, only to spill over into an apparent attempt by the Republican-dominated legislature to pack the court with new justices.
Outside groups spent an estimated $19.4 million on TV in 2015-16, 44 percent more than the prior record in 2011-12. (All figures are in 2016 dollars.) These groups also made up a record 55 percent of total TV spending, compared with 38 percent in 2011-12. The Republican State Leadership Committee was the single biggest spender, with an estimated $4 million in eight states: Louisiana, North Carolina, Montana, Ohio, Arkansas, West Virginia, Wisconsin, and Pennsylvania. Political parties have all but disappeared from judicial races, making up less than 1 percent of total spending (as compared to 24 percent in the last presidential cycle).
A large portion of this outside spending was so-called “dark” or “gray” money, providing little information as to the identities of the underlying donors. Of the 20 groups that spent on television in 2015-16, only three were fully transparent. The remaining 17 include groups that do not disclose their donors, as well as PACs that list other groups as among their contributors. This makes it difficult (and sometimes impossible) to discern who is trying to influence judicial races, and masks potential conflicts of interest in cases involving major spenders.
“What we’re seeing is the legacy of Citizens United in action,” said Alicia Bannon, Senior Counsel at the Brennen Center’s Democracy’s Program. “This unprecedented flood of spending from outside special interests and secretive donors is undermining faith in the fairness of our courts and the promise of equal justice for all.”