1. James Sample et al., The New Politics of Judicial Elections 2000-2009: Decade of Change (2010),available at http://www.brennancenter.org/NPJE09 (“New Politics 2000-2009”).
  2. These figures include money from three sources: candidate fundraising totals, many non-TV expenses by non-candidate groups, and estimates of independent television expenses. Under Michigan campaign law, the first two categories are documented in state election filings, but independent TV spending is not. The different totals reflect the difference between two methods of estimating of total TV spending. The higher TV estimate, by the Michigan Campaign Finance Network (http://www.mcfn.org/pdfs/reports/MSC_10.pdf), is based on the examination of records of television stations across Michigan to log ads aired in the high-court race. The lower TV estimate, by TNS Media Intelligence/CMAG, is based on an analysis of satellite ads monitored on satellite technology, and does not include cable TV ads. See note 11 for a description of the TNS Media Intelligence/CMAG methodology.
  3. A similar pattern occurred in the April 2011 Wisconsin Supreme Court election, when Justice David Prosser and challenger JoAnne Kloppenburg, each receiving $400,000 in public financing, were heavily outspent by special-interest groups. The candidates accounted for less than 20 percent of all money spent on election communications.
  4. Numbers for three groups that spent in Michigan—the state Republican and Democratic parties and the Law Enforcement Alliance of America‚ reflect TV data capture by TNS Media Intelligence /CMAG for the Brennan Center for Justice. A full explanation of this technology is available in Chapter 2. Calculations by the Michigan Campaign Finance Network, which examined TV station ad logs arrived at a higher spending total for all three groups. The MCFN data are available at: http://www.mcfn.org/pdfs/reports/MSC_10.pdf
  5. These advertisements are not reflected in the TNS Media Intelligence/CMAG estimates cited throughout this report. As explained in note 11, below, because TNS/CMAG data relies on satellite capture of television advertising, small ad buys on local channels are not included in the estimates.
  6. Press Release, Brennan Center for Justice, “2010 Judicial Elections Increase Pressure on Courts, Reform Groups Say,” Brennan Center for Justice, (Nov. 3, 2010) available at http://www.brennancenter.org/judicial_pressure.
  7. Andy Barr, Michele Bachmann Calls Judges ‘Black-Robed Masters’in Iowa, Politico (March 23, 2011), available at http://www.politico.com/news/stories/0311/51847.html.
  8. Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876, 915 (2010).
  9. See Michigan Campaign Finance Network, $70 Million Hidden in Plain View, (June 2011), available at http://www.mcfn.org/pdfs/reports/MICFN_HiddenInPlainViewP-rev.pdf.
  10. All data on ad airings and spending on ads are calculated and prepared for the Brennan Center by TNS Media Intelligence/CMAG, which captures satellite data in the nation’s largest media markets. CMAG’s calculations do not reflect ad agency commissions, the costs of producing advertisements, or ad purchases limited to local cable channels. The costs reported here, therefore, understate actual expenditures and should be considered conservative estimates of actual TV spending. These estimates are useful principally for purposes of comparing relative spending levels across states, and across time.
  11. The highest levels of TV spending by special interest groups ever seen in a judicial election took place in a non-partisan election, Wisconsin’s hotly contested April 2011 race. See Press Release, Brennan Center for Justice, “Final Numbers: Special Interest Spending Near $3.6 Million in Wisconsin,” Brennan Center for Justice, (Apr. 6, 2011) available at http://www.brennancenter.org/WI_2011_Final; Larry Sandler,
    “As Supreme Court race nears, TV ad spending soars”, Milwaukee Journal Sentinel, March 30, 2011.
  12. In Colorado, no candidates or outside groups aired advertising endorsing or opposing specific judicial candidates. Several groups in Colorado did, however, sponsor a public education campaign to provide voters with impartial, nonpartisan information about the judges appearing on Colorado’s ballot. These groups — including the Institute for the Advancement of the American Legal System, the League of Women Voters of Colorado, the Colorado Judicial Institute, and the Colorado Bar Association — launched a website called “KnowYourJudge.com,” and produced radio and television public service announcements alerting voters to available resources that provided information relating to Colorado’s judicial elections.
  13. As noted, all data on ad airings and spending on ads derived from analysis performed by TNS Media Intelligence/CMAG. See note 11.
  14. See, e.g., Adam Skaggs, Brennan Center for Justice, Buying Justice: The Impact of Citizens United on Judicial Elections 4-7 (2010), available at http://www.brennancenter.org/buying_justice (collecting survey data on national and state level data demonstrating that Americans believe, by significant margins, that campaign spending has an impact on judicial decision-making). A recent national survey conducted by Harris Interactive showed widespread, bipartisan concern about the escalating influence of money in judicial elections and its potential to erode impartiality. See Press Release, Justice at Stake, “Solid Bipartisan Majorities Believe Judges Influenced by Campaign Contributions” (Sept. 8, 2010), available at http://tinyurl.com/2c422fs. Among the findings of the survey were the following: 71 percent of Democrats, and 70 percent of Republicans, believe campaign expenditures have a significant impact on courtroom decisions. Id. Only 23 percent of all voters believe campaign expenditures have little or no influence on elected judges. Id. In addition, 82 percent of Republicans, and 79 percent of Democrats, say a judge should not hear cases involving a campaign supporter who spent $10,000 toward his or her election. Id. Finally, 88 percent of Republicans, and 86 percent of Democrats, say that “all campaign expenditures to elect judges” should be publicly disclosed, so that voters can know who is seeking to elect each candidate. Id.
  15. See generally Duke v. Leake, 524 F.3d 427. (4th Cir. 2007), cert. denied 129 S. Ct. 490 (2008) (upholding North Caroline’s judicial public financing program, which contains provisions similar to Arizona’s); Wisconsin Right to Life PAC v. Michael Brennan, Brief for Common Cause in Wisconsin, et al. as Amicus Curie Supporting Appellees, No. 11-1769 (W.D.Wis. 2012), No. 11-1769 (7th Cir. 2011) (dismissed as moot); (arguing that a state’s constitutional obligation to prevent bias and protect the appearance of judicial impartiality represents a compelling interest that is unique and distinct from the anti-corruption interest ordinarily implicated in campaign finance cases), available at http://www.brennancenter.org/content/resource/wisconsin_right_to_life_political_action_committee_v._michael_brennan/.
  16. See Sample et al., New Politics 2000-2009, supra note 1 at 32.
  17. See Press Release, Brennan Center for Justice, “Special Interest TV Spending Sets Record in Wisconsin,” Brennan Center for Justice, (Apr. 5, 2011) available at http://www.brennancenter.org/content/resource/special_interest_tv_spending_sets_record_in_wisconsin/.
  18. Incumbent Justice David Prosser and his challenger, JoAnne Kloppenburg (who each received $400,000 in public financing for the primary and general elections) were far outspent by special interest groups (which spent at least $3.6 million in the 2011 race).  But a comparison with the heavily-contested 2008 race shows that the new public financing system was not responsible for the high levels of outside spending: in Wisconsin’s 2008 high court election outside groups spent a then-record $3.38 million on TV ads—only slightly less than was spent in 2011.  In contrast to 2011, however, the candidates in 2008 raised their funds from private sources. The victorious candidate, Justice Michael Gableman—who was subsequently investigated for ethics violations related to his campaign television ads—raised $443,839 in private contributions to run for a seat on the high court—including $86,905 from the general business sector and $79,845 from the finance, insurance and real estate industries. See Sample et al., New Politics 2000-2009, supra note 1; Mark Ladov and Maria da Silva, In Wisconsin, Judges Are Elected—But Candidates Are Now Publicly Financed, The Nation (May 6, 2011).
  19. Bill Raftery, In Surprise Move, North Carolina House Floor Amendment to Budget Tries to Kill Public Financing for Judicial Campaigns, Gavel to Gavel, May 4, 2011, available at http://tinyurl.com/42phx9z.
  20. See 20/20 insight llc, North Carolina Registered Voter Survey, February 2011, available at http://www.justiceatstake.org/media/cms/q165__freq_limited_release_9E72F4684EB8B.pdf.
  21. Bill Raftery, Latest Effort to Impeach a State Judge For His Decision(s) Filed Against Missouri Judge up for a Federal Judgeship, Gavel to Gavel, May 16, 2011, available at http://tinyurl.com/3goeh3u.
  22. Peter Hardin, ABA’s Zack Hits Plan for FL Court Dysfunction, Gavel Grab, April 14, 2011, available at http://www.gavelgrab.org/?p=19814.
  23. In Re Coy Reece, Relator, No. 09-0520 (TX May 27, 2011) (Willett, J., dissenting), available at http://www.supreme.courts.state.tx.us/historical/2011/may/090520d2.htm.
  24. National Center for State Courts Budget Survey Budget Percent Change Maps and Tables, available at: http://www.ncsc.org/Information-and-Resources/Budget-Resource-Center/About-the-BRC.aspx.
  25. Shane Goldmacher, Chief justice: ‘Crippling’ California Court Cuts Would Be ‘A Blow Against Justice,’ L.A. Times (June 14, 2011).
  26. See Roy Weinstein and Stevan Porter, Economic Impact on the County of Los Angeles and the State of California of Funding Cutbacks Affecting the Los Angeles Superior Court (December 2009), available at http://www.micronomics.com/articles/LA_Courts_Economics_Impact.pdf; The Economic Impacts on the Georgia Economy of Delays in Georgia’s State Courts Due to Recent Reductions in Funding for the Judicial System, The Washington Economics Group, Inc. (2010), available at http://www.gabar.org/public/pdf/news/2011%20Georgia%20Bar%20Economic%20Impacts.pdf.