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October 2, 2014

Big Money Undermines Judicial Elections, Report Warns

The same unrestricted money that flooded political campaigns in 2012 also inundated judicial elections and is threatening public confidence in the courts and the independence of the judiciary, a new report from a trio of groups warns.

Dubbed “The New Politics of Judicial Elections,” the report identifies record levels of TV advertising and outside spending; a new class of largely conservative “super spenders,” and a surge in negative and misleading ads — all trends mirrored in last year’s presidential and congressional races.

“What this is all about is about how much insulation we are going to have around the bench,” said Bert Brandenburg, director of  Justice at Stake — which co-authored the report — in a Friday conference call with reporters. “Are we going to let money erode that insulation? Are we going to let political parties erode that insulation? Are we going to let interest groups erode that insulation?”

The answer may already be yes, warns the report, whose other authors were the National Institute on Money in State Politics and the Brennan Center for Justice at New York University’s School of Law. All the groups aim to promote fair elections and courts.

The report points to the Supreme Court’s 2010 Citizens United v. Federal Election Commission ruling as a watershed in judicial spending. Among the report’s key findings:

  • TV spending in judicial races soared to $33.7 million in the 2012 election cycle, far exceeding the previous $28.5 million record set in the 2008 elections.
  • Independent spending by outside groups hit a record $15.4 million on judicial elections in 2011-12, a more than 50 percent increase over the previous record of $9.8 million in the 2004 election cycle. Fueling the trend were some of the same outside groups engaged in national politics, such as Americans for Prosperity backed by the billionaire brothers Charles and David Koch.
  • “Super spenders” from a few interest groups and political parties dominated the most expensive elections. The top 10 spenders were responsible for some $19.6 million of total spending in the 2012 elections, compared with $12.3 million in the 2008 presidential election cycle.
  • Judicial elections saw a wave of negative and misleading ads, some accusing candidates of being “sympathetic to rapists,” volunteering “to help free a terrorist” or protecting sex offenders.

Such ads “misrepresented the records of these candidates, and also just created a carnival atmosphere, where judges are starting to look indistinguishable from politicians,” said Alicia Bannon, counsel at the Brennan Center for Justice. She added: “These mud-slinging ads hurt public confidence in the integrity of our judicial system.”

Some judges also were targeted for decisions they made involving criminal rulings, same-sex marriage or the Affordable Care Act health care law, the report found.

“Essentially, judges are being put on notice that unpopular or controversial decisions can put them at risk of big-spending attacks,” Bannon said.

The report recommends a range of remedies, including better disclosure, stronger recusal rules, public financing for judicial races, and more merit selection of judges, which involves appointment by commission. Even “retention elections,” in which merit-selected judges run to retain their seats, have been targeted for heavy spending, the report notes.

“The judges are worried,” Brandenburg said. “They feel trapped. And they want to spend their time talking to voters, not donors.”

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