Over the past decade and a half, television advertisements have helped transform state supreme court races, and not for the better. The expanded use of 15- and 30-second ads, combined with the growing involvement of outside groups in purchasing TV time, has driven up costs and imported some of the worst aspects of regular politics into judicial campaigns. In 2000, only four states saw television ads broadcast during their supreme court elections, according to data from Kantar Media/CMAG. In 2016, TV ads appeared in 15 states (16 states when the 2015 elections are included). 1

Overview

Candidates, parties, and outside groups spent an estimated $36.9 million on TV ads in 2015-16, topping the previous record of $35.9 million in 2011-12 (inflation-adjusted), the last presidential election cycle. 2 Ten states saw high court races exceed $1 million in TV spending. Outside groups spent a record $20.9 million on TV ads, constituting an unprecedented 57 percent of all dollars spent on television ads during the two-year period. The prior record was 38 percent during the 2011-12 cycle. 3

The heightened TV spending in 2015-16 infused ad wars with a new level of intensity. In total, 71,571 ad spots flooded the airwaves, the second highest ad count since tracking began in 2000. 4

Pennsylvania led the nation in overall TV spending (a record $12.4 million) with three Democratic candidates and Pennsylvanians for Judicial Reform, an outside group supporting them, each investing more than $1 million apiece and outspending Republican rivals and allies. The Republican State Leadership Committee’s Judicial Fairness Initiative also spent over $900,000 on TV in the state.

Total TV Spending, 2015-16

STATEEstimated TV SpendingSpot Count
TOTAL $ 36,906,09671,571
Pennsylvania (2015) $ 12,400,72019,764
West Virginia $ 4,203,57610,155
North Carolina $ 3,493,3203,641
Wisconsin (2016) $ 3,207,07010,949
Michigan $ 2,715,8902,768
Louisiana $ 2,511,8004,193
Kansas $ 2,041,2203,159
Mississippi $ 1,858,7103,555
Ohio $ 1,321,6704,490
Arkansas $ 1,240,7302,931
Wisconsin (2015) $ 530,5901,747
Montana $ 418,3401,627
Texas $ 341,130230
Washington $ 237,690857
New Mexico $ 212,590973
Kentucky (2016) $ 129,680326
Idaho $ 39,730199
Kentucky (2015) $ 1,6407
Television spending estimates and spot counts reflect data from Kantar Media/CMAG, except for West Virginia, which comes from data from state campaign finance disclosures. Unless otherwise noted, all races took place in 2016.

A More Pervasive Negative Tone

States were not only flush with ads in the 2015-16 cycle — they also saw more ads go negative than in other recent election cycles, contributing to an increasingly politicized tenor in supreme court elections across the country. Thirty-five percent of all advertising spots (or more than one out of every three) were negative during 2015-16, up from 21 percent in 2013-14 and 24 percent in 2011-12. 5 Wisconsin had the most negativity overall, with negative ads making up 70 percent of all ad spots in its 2015 and 2016 elections.

This heightened negativity is likely another byproduct of the record outside spending by interest groups in 2015-16. A notable 73 percent of all negative ad spots aired during this cycle were paid for by outside groups. Tellingly, only 15 percent of candidates’ own ads had negative content, while 64 percent of spots paid for by groups were negative in tone. This divergence between candidates and groups is not surprising: Judicial candidates are bound by judicial conduct rules that constrain their behavior and may also have a reputational interest in avoiding mudslinging. In some cases, candidates may also forego negativity expecting that an outside group will go on the attack on their behalf.

It is important to recognize that some negative ads, while perhaps unpleasant, are fact-based and may raise legitimate issues for voters. For example, a series of ads in Wisconsin’s 2016 supreme court race accurately described past writings by the winning candidate, Justice Rebecca Bradley, in which she said she had no sympathy for “queers” living with AIDS. 6

Number of Television Ad Spots by Cycle

Television spot count data courtesy of Kantar Media/CMAG.

Total TV Spending by Cycle (2016 Dollars)

Television spending estimates are from Kantar Media/CMAG, except for West Virginia’s 2016 election, which relied upon state campaign finance disclosures. All figures have been converted into 2016 dollars, including TV spending figures for 2015. For this reason, the 2015-16 total in this chart is slightly higher than the figure that appears elsewhere in this report.

Ad Tone by Sponsor

Ads Sponsored by Groups

Ads Sponsored by Candidates

Source: Analysis of ad spots by the Brennan Center for Justice based on data provided by Kantar Media/CMAG. Parties’ ads were not included in this calculation because there were fewer than 1000 ad spots run by parties in total.

Percentage of Negative Ads by Sponsor

Analysis by the Brennan Center for Justice based on data provided by Kantar Media/CMAG.

But such ads are atypical. Far more representative was an ad put out by an outside group in Washington State’s 2016 supreme court election, criticizing a justice seeking reelection as “enabl[ing] child predators” and “letting dangerous people do dangerous things,” 7 referring to his participation in a 5-4 decision that the police had not given adequate warning when they sought to search a private home without a warrant. 8 The ad drew a rebuke from a retired Washington Supreme Court justice and a former U.S. Attorney, who wrote a public letter describing the ad as “misrepresent[ing] both the impacts — and motives” of the opinion and “borrow[ing] tactics from some of our country’s ugliest political moments.” 9

In total, more than half of all negative ads aired in 2015-16 attacked judges for rulings on the bench, often in a misleading way designed to stoke emotion and anger, rather than honestly inform voters. The trend of targeting judges for their decisions can also cast a long shadow. As discussed earlier, a growing body of research suggests that fears about election attacks can impact how judges rule in cases, particularly on criminal justice issues. 10Negative campaigning may also further blur the line between politics and judging — making it harder for judges to focus on doing what the law requires, rather than what is politically popular or expedient.

“Can’t Be Trusted,” paid for by Judicial Integrity WA PAC. Copyright 2016, Kantar Media/CMAG.

Heightened negativity may also impact the courts on the front end, making it harder to attract strong judicial candidates to run in elections. As retired Montana Supreme Court Justice James C. Nelson asked in a recent op-ed: “Why would a qualified and experienced attorney choose to run for a judicial office that pays a fraction of that in the private sector; that requires the candidate to raise and spend a small fortune; and that demands the candidate, for months on end, subject herself or himself (along with their families) to a barrage of lies, misinformation and abuse from out-of-state organizations that know nothing — and care less — about the targeted candidate, Montana, its people or its Constitution and laws?” 11

Ad Themes

As in the prior election cycle, the most common theme in supreme court election ads during 2015-16 was criminal justice, with candidates described as being “tough” or “soft” on crime. Ads typically highlighted a candidate’s record prosecuting criminals, standing up for victims’ rights, and/or upholding death sentences. A third of all ad spots (34 percent) used criminal justice themes, including 42 percent of all negative ads.

Notably, groups that paid for criminal justice-centered ads often had little apparent institutional interest in the area. Ten of the organizations that spent money on criminal-justice-themed ads this cycle had websites or other public statements about their mission or focus. Of these, only two listed criminal justice-related topics among their priorities.

The share of criminal justice-themed ads in 2015-16 dropped substantially from the 2013-14 cycle, where a record 56 percent of ad spots discussed criminal justice issues. It is consistent, however, with previous highs prior to 2013-14. (In both 2007-08 and 2009-10, criminal justice themes made up 33 percent of total ad spots.)

“Traditional” ads, which highlight a candidate’s experience, personal and professional qualifications, education, character, family, and community involvement, were a close second among ad types during 2015-16, making up 33 percent of ad spots. The vast majority of traditional ads, 85.9 percent, were run by candidates themselves.

Ads touting endorsements by prosecutors, police unions, or other law enforcement groups were also common, accounting for 29 percent of all 2015-16 TV ad spots. These ads highlight the often-close relationship between law enforcement and judges — in an environment where state courts adjudicate the overwhelming majority of criminal cases. 12 (Because ads can have multiple angles, some were coded as both criminal justice and endorsement-focused.)

Ad Themes for State Supreme Court Elections, 2015-16

Ad Themes

No. 1: Criminal Justice

Ads describing a candidate as being “tough” or “soft” on crime. Highlights a candidate’s record prosecuting criminals, standing up for victims’ rights, and/or upholding death sentences.

No. 2: Traditional

Ads highlighting a candidate’s experience, personal and professional qualifications, education, character, family, and community involvement.

No. 3: Endorse

Ads highlighting a candidate’s endorsements by and/or support from law enforcement personnel, including police officers and prosecutors.

No. 4: Family Values

Ads that praise a candidate for protecting children and families. May deal with issues such as child predators and domestic violence.

No. 5: Special-Interest Influence

Ads claiming that judges are “for sale” or “in the pocket” of big corporations. May praise a judge for ignoring special interests, or criticize a candidate for favoring outside groups and giving in to political pressure.

No. 6: Decisions

Ads that criticize a judge for a ruling in a past case, or for their rulings in a specific type of case.

Television spending spot count data came from data by Kantar Media/CMAG.

Notes:

  1. Deborah Goldberg et al., New Politics of Judicial Elections 2004, Justice at Stake, Brennan Center for Justice, and Institute on Money in State Politics, 2005, 3, http://www.brennancenter.org/publication/new-politics-judicial-elections-2004. Note that TV spending information was not available for any 1999 elections. With respect to Montana, TV spending data is unavailable for elections prior to 2008. In both the 1999-2000 and 2015-16 election cycles, 33 states held elections for their state supreme courts.
  2. Unless otherwise noted, the television spending estimates in this chapter were provided to the Brennan Center by Kantar Media/CMAG, and are based on captured satellite data in the nation’s largest media markets. CMAG’s calculations do not reflect ad agency commissions or the costs of producing advertisements, nor do they reflect the cost of ad buys on local cable channels.
  3. Greytak et al., Bankrolling the Bench, 56.
  4. The highest spot count was 73,523 in 2007-08.
  5. Due to data limitations, this report cannot determine whether the percentage of negative ads during 2015-16 was an all-time record. Numerous ads from 2001, 2003, and 2007 were never coded for tone and are no longer available. For the ads that were coded, negativity during 2007-08 was slightly higher than in 2015-16, at 39 percent.
  6. “Extreme Views,” Greater Wisconsin Committee, aired March 28, 2016, https://www.brennancenter.org/sites/default/files/analysis/Buying_Time/STSUPCT_WI_GREATERWI_EXTREME_VIEWS.pdf.
  7. “Can’t be trusted,” Judicial Integrity Washington PAC, aired October 20, 2016, https://www.brennancenter.org/sites/default/files/analysis/Buying_Time/STSUPCT_WA_JUDINTWAPAC_CAN%27T_BE_TRUSTED.pdf.
  8. State v. Budd, 374 P.3d 137 (Wash. 2016).
  9. Letter from Chief Justice Gerry Alexander, ret., Professor Dave Boerner, Russ Hauge, John McKay, and Rebecca Roe, October 18, 2016, available at http://mediad.publicbroadcasting.net/p/northwestnews/files/201610/wiggins_ad_letter_.pdf.
  10. Kate Berry, How Judicial Elections Impact Criminal Cases, Brennan Center for Justice, 2015, https://www.brennancenter.org/publication/how-judicial-elections-impact-criminal-cases.
  11. James C. Nelson, “It’s time to make a change in selecting judges in a post Citizens United world,” Montana Lawyer 40, no. 4 (February 2015): 21, http://c.ymcdn.com/sites/montanabar.site-ym.com/resource/collection/EAA30F23-4767-49DA-BBE7-152CF93C8535/February_2015_Montana_Lawyer_new.pdf.
  12. 94 percent of all felony convictions occur in state court. Berry, How Judicial Elections Impact Criminal Cases, 1.