Three full election cycles after Citizens United, there is a clear trend line: interest groups are increasingly engaging in outside spending in an effort to influence state supreme court elections. This chapter further explores what we know — and don’t know — about the groups that are transforming elections for powerful state high courts.
In total, 59 interest groups, mostly PACs, Super PACs, 527s, and so-called “social welfare” organizations, tapped their treasuries to engage in outside spending in the 2015-16 election cycle. More than a quarter (16 groups) were new organizations created during the 2015-16 election cycle, many with generic names like “Fair Judges,” which spent nearly $1.2 million in North Carolina’s supreme court election, or “Citizens for Judicial Excellence,” which spent over $600,000 in Louisiana.
In total, 12 states saw outside spending by groups during the 2015-16 cycle, one more than during the last presidential election cycle. Nine groups spent more than $1 million. Pennsylvania, North Carolina, and West Virginia were the states with the highest outside spending totals. However, there is also plenty of room for outside spending to grow. In eight states, only spending by candidates was documented.
A quarter of all spending by outside groups came from national groups or their state affiliates, which spent more than $6.8 million (excluding contributions by national groups to state-based organizations, candidates, or parties). 1 While the presence of national groups in state court elections may suggest a multi-state courts strategy, interestingly, only two groups, the Republican State Leadership Committee and the Center for Individual Freedom, engaged in outside spending in more than one state during 2015-16, suggesting another area where outside spending might have the potential to grow.
The Transparency Problem
While the U.S. Supreme Court has repeatedly made clear that Congress and the states have the power to adopt robust campaign finance disclosure laws, the reality is that loopholes abound, even as outside spending has grown increasingly dominant. 2 As a result, ballooning spending by outside groups in supreme court elections has corresponded with greater secrecy as well.
Again mirroring the trends in elections for political offices, state high court elections during the 2015-16 cycle saw two different forms of shadowy spending by groups: expenditures that lack donor transparency, and spending by groups that failed to report expenditures to campaign finance authorities at all, taking advantage of state laws with reporting loopholes for certain kinds of outside spending deemed independent from the candidate.
The rise of this secret spending means that voters may increasingly lack essential information about who is trying to influence judicial races. And, while judges often have ethical duties to step aside from hearing cases involving major campaign supporters, secret spending means that litigants (and sometimes even judges hearing cases) may be unaware of potential conflicts of interest warranting judicial recusal.
The interests underlying secret spending are, by design, hard to discern. However, a recent Brennan Center study examining trends with respect to secret money in state and local elections (including, but not limited to, judicial elections), found, unsurprisingly, that undisclosed donations often came from entities or individuals with “a direct and immediate economic stake” in the election outcome. 3
In Montana, for example, an investigation by the state campaign finance authority recently revealed that the Montana Growth Network, a dark money group that spent hundreds of thousands of dollars on attack ads in the state’s 2012 supreme court election, had financial backing by oil and gas companies in the state — frequent players in state court. Two out-of-state billionaires who owned estates in Montana, Charles Schwab, the founder of the eponymous discount brokerage firm, and James Cox Kennedy, who chairs a media group called Cox Enterprises, also gave six-figure donations to the group. Both Schwab and Kennedy had been engaged in long-standing legal fights in state court about access to waterways on their estates. 4
The Montana Growth Network-backed candidate, lower court judge Laurie McKinnon, captured the supreme court seat. Later, she was one of two justices to dissent in an unsuccessful lawsuit challenging the constitutionality of Montana’s stream access law, which had been brought by Kennedy prior to McKinnon’s election. There is no evidence that McKinnon was aware of Kennedy’s involvement in her campaign. However, given these circumstances, Montana voters might reasonably be left to wonder what McKinnon knew about the Montana Growth Network’s donors and whether campaign support played any role, even unconsciously, in her vote.
Dark and Gray Money
With respect to donor transparency, during the 2015-16 cycle, only 18 percent of expenditures by outside groups could be easily traced to transparent donors. 5 Fully 54 percent of expenditures by outside groups consisted of “dark” money where donor information was unavailable. An additional 28 percent of expenditures was “gray” money, where reporting groups listed other groups as donors, making it impossible to identify the original contributors without sifting through multiple layers of disclosures. Overall, the total amount of dark and gray money expenditures during the 2015-16 supreme court election cycle was greater than all outside group spending in any previous cycle.
Of the ten highest-spending groups during 2015-16, none was fully transparent, and seven were completely dark, meaning that none of the underlying donors could be identified. In two states (Kansas in 2016, and Wisconsin in 2015), all of the outside spending by groups was nontransparent (i.e., either dark or gray).
A second source of secrecy during the 2015-16 election cycle derived from state law loopholes that enable outside groups to completely avoid reporting their expenditures to campaign finance authorities. Prior to this cycle, a 2014 report by the National Institute on Money in State Politics found that 24 states failed to ensure meaningful disclosure of outside spending. Either the states did not require disclosure absent ads containing “magic words” explicitly calling for the election or defeat of a candidate, or they did not require reporting of outside spending at all. 6
Remarkably, during the 2015-16 election cycle, nearly $10.2 million in outside spending — more than one third of all documented outside spending 7— was never disclosed to the public in any campaign finance filing.
The only way we were able to identify this spending was through estimates of television ad buys provided by Kantar Media/CMAG under a paid contract with the Brennan Center, or through reviewing individual ad contracts posted online with the Federal Communications Commission (FCC). Ads appeared on TV — and spending on them was documented by Kantar Media/CMAG or in ad buy contracts — but those numbers eluded campaign finance authorities.
In total, the costs of 32 different TV ads, out of 167 unique TV ads aired in elections nationwide, were not reported by sponsors. These unreported ads included an attack ad against Kansas Supreme Court justices for not “following the law,” a claim that a judicial candidate in Arkansas “profits from your pain” as a personal injury lawyer, and an ad criticizing a supreme court candidate and appellate judge in Wisconsin for “letting criminals off on technicalities.” Six states had at least $500,000 in unreported spending that was only captured by Kantar Media/CMAG or identified in ad contracts posted on the FCC website: Arkansas, Kansas, Louisiana, Michigan, Mississippi, and Wisconsin.
The Major Players
At the top of the roster of big-spending groups during the 2015-16 supreme court election cycle were the Republican State Leadership Committee’s Judicial Fairness Initiative, which supported Republican or conservative candidates in nine states and won in four, 8 and Pennsylvanians for Judicial Reform, which backed three Democratic candidates who won seats in Pennsylvania’s record-setting 2015 supreme court election.
The Judicial Fairness Initiative spent more than $4 million on TV ads and other election activities directly, and contributed an additional $850,000 to other outside spending groups, according to disclosures — an increase from its reported spending in prior election cycles. Its actual spending may have been even more than that. According to its website, the Judicial Fairness Initiative spent “more than $6.1 million” in its 2015 and 2016 efforts. 9 As for Pennsylvanians for Judicial Reform, state disclosures indicate the group spent more than $4.1 million on TV and radio ads, mailers, field work, polling, research, and consultants in Pennsylvania’s 2015 election.
The spending profile of both groups is consistent with historical trends, in which the perceived “business” or “plaintiff”-friendliness of judicial candidates has been a major driver of special interest spending. 10 Business interests and conservative groups have tended to back candidates with Republican ties, often spending via national organizations as part of a multi-state strategy. Plaintiffs’ lawyers and unions have tended to support candidates with Democratic ties, typically organizing on the state level. 11
The Judicial Fairness Initiative, as background, was started in 2014 by the Washington-D.C.-based Republican State Leadership Committee, whose mission is to “elect Republicans to multiple down-ballot, state level offices.” 12 (Once part of the Republican National Committee, the RSLC reorganized as an independent organization in 2002 in response to the McCain-Feingold campaign finance reform law, which banned “soft money” contributions to national party committees.) Explaining the Judicial Fairness Initiative, RSLC leaders said that conservative policies passed by state legislatures were “running into a hard stop with judges who aren’t in touch with the public.” 13 The Judicial Fairness Initiative’s donations during 2015-16 came entirely from the RSLC, which is in turn funded by the U.S. Chamber of Commerce (which does not disclose its donors), along with corporations and industry groups, including Reynolds American, Altria Group, Blue Cross/Blue Shield, and the Pharmaceutical Research & Manufacturers of America.
Pennsylvanians for Judicial Reform, by contrast, is a state-based group, led by the former chair of the Pennsylvania Democratic Party. 14 Much of its funding during 2015 came from the Philadelphia Trial Lawyers Association, public employee unions, and the National Education Association (NEA). The group also received over $500,000 from a dark money group, the PA Alliance.
It bears noting, however, that not every state’s supreme court election this cycle fit easily into the traditional divide between business interests and trial lawyers. In Washington State, for example, where outside groups spent nearly $1.4 million in an unsuccessful attempt to unseat three justices, a ruling about charter schools appears to have prompted the involvement of several wealthy interests.
Bill Gates, along with former Microsoft CEO Steve Ballmer (and his wife Connie Ballmer), Microsoft’s current president, Brad Smith, and Vulcan Inc., which was founded by Microsoft co-founder Paul Allen, donated a total of $542,000 to Citizens for Working Courts Enterprise Washington. Armed with those donations, the newly formed group then spent nearly $540,000 opposing Justice Charles Wiggins and supporting his opponent Judge David Larson. Although the donors did not publicly disclose their reasons for intervening in the race, Gates, Vulcan Inc., and Connie Ballmer had all previously backed a successful ballot measure establishing charter schools in the state. The Washington Supreme Court (including Justice Wiggins) struck down this measure in 2015, ruling that it was unconstitutional because it funded charter schools controlled by appointed boards using resources reserved for schools controlled by elected boards. 15
Another outside group, Judicial Integrity Washington, which was backed by billionaire investor Ken Fisher and spent $450,000 on the election, also described the charter school decision as among its reasons for challenging the justices, along with a recent court ruling upholding a $15 minimum wage and another striking down a law requiring a two-thirds legislative majority to raise taxes. 16
Other major players during the 2015-16 election cycle included the following groups:
- Judicial Crisis Network (JCN), a national, conservative group founded in 2004 as the Judicial Confirmation Network to support President George W. Bush’s U.S. Supreme Court nominees, spent $554,840 in Arkansas’ 2016 supreme court election, and contributed $200,000 to the North Carolina Chamber of Commerce for spending in the 2016 North Carolina Supreme Court election. According to an IRS filing by JCN, the group also contributed $325,000 in “general support” to the Republican State Leadership Committee and $1.4 million to the Wisconsin Alliance for Reform, two groups that made substantial expenditures in state supreme court elections during this cycle. JCN does not disclose its donors, but IRS filings indicate it receives substantial support from another dark money organization, the Wellspring Committee, which also funds the conservative law group the Federalist Society. 17
- Wisconsin Alliance for Reform, a group founded in 2015 by former GOP staffers to promote lower taxes and limited government 18 ran ads supporting Justice Rebecca Bradley’s successful 2016 bid for a full 10-year term on the Wisconsin Supreme Court. The group, which is structured as a 501(c)(4) and does not disclose its donors, spent more than $1.8 million on the election. As discussed above, the Judicial Crisis Network reported in an IRS filing that it contributed $1.4 million in “general support” to the Wisconsin Alliance for Reform.
- The Virginia-based Center for Individual Freedom, a dark money group that advocates for tort reform and reduced campaign finance disclosure, among other positions, spent more than $1.7 million in Louisiana and Mississippi during 2015-16. The group ran TV ads in Louisiana characterizing Judge Jimmy Genovese’s decisions in criminal cases as “sid[ing]” with “sexual predators” and praising Judge Marilyn Castle for “locking up child sex offenders for good.” In Mississippi, its ads described the incumbent Justice Jim Kitchens as having “repeatedly sided with predators and murderers.” Neither of the group’s preferred candidates won their races.
- NC Families First, a group principally funded by North Carolina Citizens for Protecting Our Schools, 19 pumped more than $1.7 million into North Carolina’s supreme court election in support of Judge Michael Morgan, who defeated incumbent Justice Robert Edmunds Jr. The group was also active in supporting Democratic candidates in state legislative races. On the other side, Fair Judges, which spent nearly $1.2 million in support of Edmunds, received more than $500,000 from the Republican State Leadership Committee’s Judicial Fairness Initiative, as well as additional funds from state GOP and business and corporate interests.
- Color of Change, a national racial justice organization focused on economic, criminal justice, and democracy reform, also spent $220,000 supporting Judge Morgan in North Carolina. Color of Change, which channeled this money through its PAC, received funding from George Soros and another group, Make NC First, whose board includes prominent boosters of North Carolina Democrats. 20
- Kansans for Justice, which was founded in 2014 and opposed the retention of two justices that year, spent an estimated $1.07 million on advertisements opposing the retention of four Kansas Supreme Court justices in 2016. The group cited a ruling in which the seven-member court overturned the death sentences of brothers convicted of committing grisly murders, ordering a new sentencing hearing. The group, which does not disclose its donors, identified itself as a collection of “friends and family members” of the victims in that case.
- Kansans for Fair Courts, an initiative of the Kansas Values Institute, which advocates for greater education and infrastructure funding, as well as independent courts, spent an estimated $970,000 supporting the retention of all five of Kansas’ justices up for retention in 2016. The group does not disclose its donors. (The Brennan Center has worked with the Kansas Values Institute on various fair courts initiatives, but took no position on the retention election.)
A Parallel Problem: Dark Money and Federal Judicial Nominations
At the same time state supreme courts are awash with secretive outside money, federal judicial confirmation battles in the Senate are experiencing a similar phenomenon, illustrating how deep-pocketed and secretive interests risk undermining the integrity of federal as well as state courts.
When President Obama first nominated Judge Merrick Garland to succeed Justice Antonin Scalia on the U.S. Supreme Court in 2016, the Judicial Crisis Network (JCN) announced it would spend $7 million to oppose him. When President Trump announced Judge Neil Gorsuch as his Supreme Court pick, after Senate Republicans refused to consider Obama’s nominee, JCN announced an additional $10 million of spending in support of Gorsuch. 21 (JCN’s actual spending has not been confirmed, although IRS filings show that the group received more than $23 million from the Wellspring Committee during this timeframe, which in turn received a $28.5 million contribution from a single, unnamed donor. 22) The group targeted vulnerable Senators, broadcasting ads in Republican-leaning states with Democratic senators up for reelection in 2018: Indiana (Sen. Joe Donnelly), Missouri (Sen. Claire McCaskill), Montana (Sen. Jon Tester), and North Dakota (Sen. Heidi Heitkamp). 23
As detailed previously, JCN, a dark money group, has also been a repeat player in state supreme court elections. The other major spender in connection with the Gorsuch nomination was the National Rifle Association, which announced a $1 million ad campaign. 24 (Actual NRA spending has not been verified, and there was very little spending by Gorsuch opponents. 25)
Similar interest group spending is also playing a role in supporting President Trump’s lower court nominees. 26 JCN reportedly purchased $140,000 in airtime for TV ads supportive of Trump’s nominee to the Sixth Circuit Court of Appeals, Michigan Supreme Court Justice Joan Larsen. 27 A nonprofit named Concerned Veterans for America, a 501(c)(4) organization affiliated with the billionaire Koch brothers, aired advertising in support of Third Circuit Court of Appeals nominee Stephanos Bibas. 28 (Both Larsen and Bibas were later confirmed by the Senate.) On the other side, NARAL Pro-Choice America announced a six-figure campaign, including ad buys, against Sixth Circuit nominee John Bush, who was later confirmed. 29
While hard numbers are difficult to come by, the Gorsuch confirmation was not the first time a U.S. Supreme Court confirmation triggered significant spending — outside groups have made expenditures dating at least as far back as the Bork nomination, and the Judicial Crisis Network was first founded as the Judicial Confirmation Network, where it supported the nominations of Justices Roberts and Alito. However, major expenditures on lower court nominations appear to have been rarer until recently. 30
The discomfiting backdrop of secret spending in connection with federal nominations also occasioned a tense exchange between then-Judge Gorsuch and Sen. Sheldon Whitehouse, D-R.I., during Gorsuch’s 2017 confirmation hearing, echoing concerns applicable to state judicial races as well: When Whitehouse asked if Gorsuch would ask donors to JCN’s $10 million confirmation campaign to identify themselves “so we can evaluate who is behind this effort,” Gorsuch responded that “It would be a politics question” and demurred. 31 Whitehouse then asked why people would want to spend $10 million to see Gorsuch on the U.S. Supreme Court. Gorsuch replied that Whitehouse would have to ask the spenders. “I can’t,” Whitehouse said, “because I don’t know who they are. It’s just a front group.” 32