- Interest Groups Drive Spending
- Spending Highest on Divided Courts
- National Overview
- Some States Trail Off
- Retention Election Spending Skyrockets in 2010
- State in Focus: Iowa
- After Citizens United: Patchwork Disclosure Rules Leave Voters in the Dark
- Disclosure vs. Hidden Spending
- State in Focus: Michigan
The Money Trail
Interest Groups Drive Spending
Spending is always lower in non-presidential election cycles, and that was true in the most recent biennium. Candidates and special-interest groups spent nearly $38.4 million on state supreme court elections in 2009-10, somewhat lower than the $42.7 million spent in 2005-06. Despite the slight falloff, a closer analysis shows a deepening of two worrisome trends.
Independent expenditures—by state parties and special-interest groups—were, in proportion to total spending, significantly greater in 2009-10 than four years earlier. Such independent activities accounted for $11.5 million, or 29.8 percent of all money spent to elect high court justices. In 2005-06, outside groups represented about 18 percent of the total spending.
For the public, this translates to a greater use of attack ads by groups not affiliated with candidates on the ballot. It also means greater secrecy. In many states with weak, outdated campaign disclosure laws, political parties and interest groups are able to conceal the sources of funds they use to spend most aggressively to determine which judges sit on the highest courts.
Moreover, to a significantly greater degree than in 2005–06, the spending was driven by a few powerful special-interest groups in 2009-10. Of the nearly $38.4 million raised and spent on state high court elections, just 10 groups accounted for nearly $15 million (including direct contributions to candidates, as well as independent expenditures)—or 38.7 percent of every dollar spent on all state high court elections. By comparison, the top 10 groups in 2005-06 accounted for $11.4 million, or 26.7 percent of total spending.
The 2009–10 election spending breakdown depicts a striking disparity between the power of a few “super spenders”—organizations capable of spending millions on court elections that affect their bottom line—and that of all other donors to judicial campaigns. The term was first coined in a 2010 study of 29 elections in the 2000-2009 decade, held in 10 states with high-cost campaigns. In each of those 29 elections, the top five spenders averaged $473,000 apiece. All other donors and groups averaged just $850.1
The money amassed by a few groups underscores an important reality about the politics of judicial elections. With candidates enjoying limited name recognition, and with few members of the public tuned in to court elections, judicial candidates must overcome serious obstacles if they hope to tap the small-donor revolution seen in recent presidential races. Presently, a few super spenders can dominate judicial election funding with an ease unparalleled in campaigns for other offices. And loopholes in disclosure laws give them numerous options for doing so in substantial secrecy.
Spending Highest on Divided Courts
In 2009–10, the most expensive high-court elections included those in Michigan, Pennsylvania and Illinois—states in which courts remain closely divided by party and/or judicial philosophy. In all three states, super spender groups drove the campaigns, often overshadowing the budgets of candidates.
In Michigan, where a final-week television blitz by candidates, interest groups and political parties dominated the airwaves, estimates of campaign spending ranged from $9.1 million to $11.1 million (with $6.8 million to $8.8 million in non-candidate spending).2 Regardless of the precise figure, Michigan’s judicial election spending was easily the nation’s highest in 2009-10. The reelection of Justice Robert Young, and the election of Justice Mary Beth Kelly to the narrowly divided court, tipped the balance from a 4-3 progressive majority to a 4-3 conservative majority.
So great was the independent spending in Michigan that the four supreme court candidates, who raised a total of $2.3 million, at times seemed like bystanders in their own elections.3 The state Republican Party single-handedly outspent all four candidates, investing more than $4 million in electoral support. Kicking in more than $1.5 million was the state Democratic Party, while the Law Enforcement Alliance of America (LEAA), a Virginia-based group with ties to the National Rifle Association, also made a major TV splash.4
Most of the special-interest spending in Michigan was concealed from the public, a fact that accounts for the variation in estimates of total spending. Although ads by both parties and the LEAA were blatant attempts to sway votes, Michigan’s outdated disclosure law treated them as apolitical “issue ads,” and required no campaign finance filings disclosing the amounts spent. Estimates of total spending therefore were largely based on the volume of TV ads each group ran, and estimates of what that airtime cost.
It also was impossible to decipher who ultimately bankrolled independent efforts in Michigan. After being the preeminent player in the previous five supreme court campaigns, the state Chamber of Commerce sponsored no television advertisements in 2010. But it did give $5.4 million to the Republican Governors Association (RGA), a national campaign organization. The RGA ultimately transferred $5.2 million back to Michigan’s Republican Party, which was the leading television sponsor in this year’s high court campaign. Accountability was lost in the face of the RGA’s massive national shell game. [See State in Focus: Michigan]
The second most expensive state in 2009-10 was Pennsylvania, where Republican Joan Orie Melvin and Democrat Jack Panella raised a combined $5.4 million for their November 2009 election. Since 2007, Pennsylvania candidates and interest groups have spent $15.5 million, the highest total nationally from 2007-10. In 2009, just two groups accounted for more than half of all candidate fundraising in Pennsylvania. The state GOP poured $1.4 million into the campaign of eventual winner Joan Orie Melvin, while the Philadelphia Trial Lawyers Association donated $1.37 million to Jack Panella.
Muddying the waters was the Pennsylvania Republican Party’s claim, during the election campaign, that its TV ads were being aired independently of Justice Orie Melvin’s election bid—even though the GOP effort was orchestrated by the Justice’s sister, state Senator Jane Orie. After the election, the party updated its campaign finance reports, treating more than a million dollars in TV ads as an in-kind contribution to the Orie Melvin campaign.
In Illinois, a single source, the Illinois Democratic Party, accounted for half of the $2.8 million raised by incumbent Justice Thomas Kilbride in his bid to retain his seat. And the $1.5 million donated to the Democratic Party by major plaintiffs’ law firms almost identically matched the $1.4 million that the party gave to Kilbride. Because of this apparent conduit, Kilbride’s own contributions showed almost no money from plaintiffs’ lawyers, enabling him to avoid direct links to special-interest money.
“Nationally, nine states accounted for $24.6 million of the $27.02 million raised by state high court candidates.”
Nationally, nine states accounted for $24.6 million of the $27.02 million raised by state high court candidates.
These state rankings change when independent expenditures by political parties and special-interest groups are included to identify total overall spending. Michigan, ranked sixth in candidate fundraising, surges to No. 1 when all sources of money, including independent TV ads, are considered. When state Chamber of Commerce spending is accounted for, Ohio also rises in the rankings, leapfrogging past Alabama, Illinois and Texas.
In 2009–10, business and conservative groups dominated the national list of 10 ten super spenders, accounting for seven of the top 10 groups, and for $10.5 million of the $14.9 million spent. This disparity differs from the 2007-08 biennium, when the left and the right spent roughly equal amounts. Nine of the 10 highest spending groups in the 2009-10 cycle were identified as judicial-election super spenders in “The New Politics of Judicial Elections, 2000-2009: Decade of Change.” Only the National Organization for Marriage, which spent $635,000 in the Iowa retention election, was a newcomer.
|Michigan Republican Party4||$122,876||$3,945,205||$4,068,081|
|Partnership for Ohio’s Future|
(Chamber of Commerce)
|Illinois Democratic Party||$1,475,000||$1,475,000|
|Michigan Democratic Party||$1,558,164||$1,558,164|
|Pennsylvania Republican Party||$1,458,522||$1,458,522|
|Philadelphia Trial Lawyers Association||$1,370,000||$1,370,000|
|Business Council of Alabama||$ 1,295,000||$1,295,000|
|Law Enforcement Alliance of America||$803,770||$803,770|
|Illinois Civil Justice League (JustPac)||$688,000||$688,000|
|National Organization for Marriage||$635,627||$635,627|
When contributions are broken down by sector, lawyers and lobbyists led the way, with $8.5 million in donations, followed by business, with $6.2 million. The third largest sector was political parties, which contributed $3.4 million. All of these categories include contributors from the left and the right. Lawyers and lobbyists, for instance, include both plaintiffs’ firms and the defense bar.
The two biggest gifts by political parties were $1.4 million from the Pennsylvania Republican Party to Justice Joan Orie Melvin, and $1.4 million from the Illinois Democratic Party to Justice Thomas Kilbride. The Pennsylvania contribution took the form of TV ads that originally were labeled as independent expenditures. The Illinois money was funded by checks to the Democratic Party from plaintiffs’ law firms.
Some States Trail Off
In 2010, spending fell compared to earlier election cycles in some of the historically most expensive states.
In Alabama—easily the most costly state in the 2000-09 decade, during which candidates raised $40.1 million—fundraising fell to $3.1 million. While still high compared with many states, that figure was a far cry from the $13.5 million raised in Alabama in 2006, still the costliest multi-candidate judicial election in American history. Likewise, fundraising in Texas was $2.9 million, down from $3.5 million in 2006.
What Alabama and Texas had in common was the lack of competitive races, and high courts overwhelmingly dominated by Republican justices. In contrast to 2008, when the national political climate encouraged Texas and Alabama Democrats to spend heavily in court races, the rightward national countertrend of 2010 appeared to cement gains previously made by conservatives and Republicans in those states.
But even a lessening of strong ballot competition did not eliminate big special-interest spending. In Alabama, where three Republican incumbent justices easily outspent Democratic challengers, the Business Council of Alabama still invested nearly $1.3 million. Similarly, in Ohio, the Partnership for Ohio’s Future, a state Chamber of Commerce affiliate, spent about $1.5 million on independent campaign efforts, nearly matching the $1.7 million raised by two Republican incumbents.
Several other states that set records in 2006, including Georgia and Kentucky, had little or no competition in 2010, with no money spent by special-interest groups. In Washington, a small number of independent TV ads aired in the primary season, but spending paled in comparison to a big-money showdown in 2006, when the state builders association sought unsuccessfully to elect two justices.5
In Nevada, which set a fundraising record in 2008, two incumbents ran unopposed. The main court-related battle there was an unsuccessful ballot measure to replace the state’s nonpartisan high-court election system with merit selection and retention election of judges.
Collectively, the lower levels of spending in several previously contested states resulted in national spending levels that fell somewhat short of those from the last non-presidential cycle, in 2005–06.
Retention Election Spending Skyrockets in 2010
One category of judicial election spending stood out in 2009–10: the money explosion in retention elections. Incumbent justices faced unprecedented fundraising by the opposition in four states: Illinois, Iowa, Alaska and Colorado. Cumulatively, nearly $4.9 million was spent, with incumbents raising $2.8 million and independent groups spending near $2.1 million.
Those numbers have deeply disturbing implications. In the entire decade from 2000 to 2009, a time when special-interest spending skyrocketed on judicial elections, retention elections remained largely immune to big-money politics. With only incumbents appearing on the ballot, and voters deciding “yes” or “no” on whether to grant another term, candidates in retention elections raised just $2.2 million nationally in 2000–09, barely 1 percent of the nearly $207 million raised by high court candidates overall.6 By contrast, retention elections accounted for 12.7 percent of all judicial election spending in 2009-10, including independent election campaigns.
In 2010, elections in Iowa and Illinois blew apart any sense that runaway spending can’t happen in retention contests. Quite the contrary: in those states national and state-based special-interest groups poured in millions of dollars. Even in other states where the “Vote No” campaigns’ funding was limited, significant challenges were mounted.
In three states with the most serious retention challenges—Iowa, Illinois and Alaska—“Vote No” campaigns had sharply different funding profiles.
In Iowa, not a single penny of spending was reported in state high-court elections in the 2000–09 decade. That changed abruptly in 2010, when three justices who voted to strike down a state law banning same-sex marriage sat for retention elections. The race became a raging statewide battle that attracted national attention and special-interest money.
The “Vote No” campaign cost about $1 million, with out-of-state groups accounting for more than $900,000. According to state disclosure records, the National Organization for Marriage spent $635,000 on two TV ads, while four other national groups, the American Family Association, the Family Research Council, the Campaign for Working Families, and the Citizens United Political Victory Fund, spent smaller amounts on the campaign, which amplified the TV ads with a statewide bus tour.
Fair Courts for Us, a “Vote Yes” group led by former governor Robert Ray, spent nearly $400,000 to support the incumbents. However, they struggled to gain traction in a state where anger over the court’s ruling on same-sex marriage remained intense outside such urban centers as Des Moines and Ames. In the end, Justices Marsha Ternus, Michael Streit and David Baker all were turned out by margins of roughly 55 to 45 percent. [See State in Focus: Iowa]
In Illinois, a state that holds multi-candidate elections for open seats and retention contests for incumbents, a longstanding history of costly competitive elections crossed the line into a retention race. Justice Thomas Kilbride was the target of the nation’s costliest retention fight since Rose Bird and two fellow justices were forced off the California Supreme Court in 1986.
The funding patterns in Kilbride’s retention race paralleled, on a smaller scale, those of a record-setting 2004 Illinois election, in which candidates Lloyd Karmeier and Gordon Maag raised a total of $9.3 million. Angered by Kilbride’s vote to help strike down a ceiling on certain medical-malpractice awards, national business groups financed a $688,000 challenge. The effort, led by the Illinois Civil Justice League, was largely funded by the U.S. Chamber of Commerce, the American Justice Partnership (a creation of the National Association of Manufacturers), and the American Tort Reform Association.
Justice Kilbride responded aggressively, raising nearly $2.8 million, and benefiting from contributions by major plaintiffs’ law firms that were routed through the Illinois Democratic Party. Justice Kilbride retained his seat, gaining 65 percent of the vote. [See State in Focus: Illinois]
In Alaska, Chief Justice Dana Fabe faced a stiff challenge from a group with very limited funding—simply through the power of a hot-button social issue. A social conservative group called Alaskans for Judicial Reform opposed Fabe because of her rulings in abortion cases. Even though the anti-Fabe campaign was organized very late in the election season, and spent only a few thousand dollars on TV advertising, Justice Fabe gained only 55 percent of the vote.
Three other anti-retention challenges, by a group called Clear the Bench in Colorado, a social conservative group in Kansas, and a tea party group in Florida, were poorly funded and ultimately failed.
All this occurred in a year in which, nationally, “yes” vote totals for incumbent justices were among the lowest ever. According to the Judicial Elections Data Initiative, justices on retention ballots received 67.09 percent of all votes, the worst rate since 1990—another time of broad anti-government sentiment.
Collectively, the 2010 retention elections raised the question whether future challenges will become more common. By the end of the 2010 election season and the subsequent 2011 legislative sessions, activists were exploring 2012 retention challenges in Iowa, Indiana and Florida.
After Citizens United:
Patchwork Disclosure Rules Leave Voters
in the Dark
When the Supreme Court issued its 2010 decision in Citizens United v. FEC, it lifted decades-old restraints and ruled that businesses can spend directly from their treasuries on federal elections. The decision unleashed a tsunami of campaign cash in federal elections—and ended similar restrictions in more than 20 states—but the decision also had a silver lining.
By an 8-1 vote, the Court declared campaign disclosure laws constitutional, adding, “With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”9
Thus, by a near unanimous vote, the Supreme Court underlined the important role that transparency in political spending plays in ensuring accountability of elected officials. Despite this constitutional green light, however, many states have fallen far short of enacting or implementing effective disclosure laws.
“With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.”
—Citizens United v. FEC
Disclosure vs. Hidden Spending
When states have an inadequate patchwork of disclosure rules, the public can be left in the dark.
An example of starkly contrasting state disclosure requirements is found in analyses of recent state supreme court spending in four Midwestern states. The example shows that millions of campaign dollars spent to elect judges may be concealed when disclosure laws are weak.
In the historic 2010 Iowa ouster vote, state disclosure laws made it possible for the public to track major campaign support from outside groups. Of almost $1 million in campaign spending to remove the judges, more than $900,000 came from out-of-state organizations, including the National Organization for Marriage based in Washington, D.C.; the American Family Association’s AFA Action, Inc. of Tupelo, Mississippi; and the Campaign for Working Families PAC of Arlington, Virginia. To defend the three state supreme court justices facing retention votes, the Iowa-based Fair Courts for Us Committee spent $423,767.
In Michigan, a staggering half of the more than $40 million spent on behalf of state Supreme Court candidates in the past decade was unreported due to lax disclosure laws, according to a report by a watchdog group, the Michigan Campaign Finance Network.10 Judicial election spending has been soaring in Michigan, which, when non-candidate spending is factored in, had the nation’s most expensive judicial elections in 2009-10.
“The gross failure of campaign disclosure in the Michigan Supreme Court campaigns creates a toxic cloud that shadows the court’s presumed impartiality,” the Michigan Campaign Finance Network wrote in June 2011. It urged reform to make campaign spending more transparent. [See State in Focus: Michigan]
“The gross failure of campaign disclosure in the Michigan Supreme Court campaigns creates a toxic cloud that shadows the court’s presumed impartiality.”
—Michigan Campaign Finance Network
In Ohio, the Partnership for Ohio’s Future in previous years identified companies and organizations that financed its TV ads. This year, in a letter to Ohio election officials, the Chamber-affiliated group declined to do so, taking more than $1.5 million in special-interest spending out of the public eye.
Secretive political spending is on the rise in Wisconsin’s elections. Outside groups spent a record $3.6 million on political advertising in the state’s spring 2011 supreme court race—without disclosing the identities of their funders.
These developments are part of a larger, national trend. Independent spending in the 2010 federal elections was more than four times greater than it was in 2006—and more of this spending was done anonymously than ever before, largely due to the disclosure loopholes in federal law. Voters are now bracing for the most expensive and secretive election in American history as November 2012 approaches.
While legislatures lag, voters overwhelmingly agree with the courts that robust disclosure laws benefit the public and democracy, especially in elections involving the courts.
In a June 2010 national survey by Harris Interactive, 88 percent of Republicans, and 86 percent of Democrats, said that “all campaign expenditures to elect judges” should be publicly disclosed, so that voters can know who is seeking to elect each candidate. Among voters surveyed, 87 percent favored full disclosure of campaign expenditures in court elections, and only 8 percent were opposed.