Money Becoming Ever More Important in State Supreme Court Races

The Illinois Supreme Court building in Springfield, Illinois. (Alan Scott Walker/ Wikipedia)

(CN) – Anita Earls is leaving her job. She’s saying goodbye to longtime associates, withdrawing from all of her cases, and starting to campaign full time.

The veteran civil rights attorney and executive director of the Southern Coalition of Social Justice made a name for herself by overturning legislative districts in North Carolina that were ultimately found to be an unconstitutional gerrymander.

Now, tired of watching the state’s highest judicial bench be politicized, she’s decided to run for the state Supreme Court in the hopes of changing that.

“[There has been] a radical revolution in our state government and I thought it would be important to stand up for the democratic principles that I hold dear which includes the independence of the judiciary and fair and impartial courts,” she said in an interview with Courthouse News.

This politicization of the courts was the focus of a recent report from Brennan Center For Justice at the New York University Law School. In it, the authors examine the growing cost of state Supreme Court races, and the heightened potential influence donor dollars might have on the judges that receive them..

The report found that record-breaking money is being spent on state Supreme Court races across the country. And that’s led court-watchers and advocates of independent jurisprudence to worry aloud whether all this money is undermining courts seen as the last word in state law disputes and a check on the executive and legislative branches of state government.

The escalating cost of state Supreme Court campaigns is nothing new. The required expenditures have been rising steadily for years. But in the wake of Citizens United, the 2010 case in which the U.S. Supreme Court held the First Amendment prohibits the government from restricting independent expenditures for communications by nonprofit corporations, for-profit corporations, labor unions, and other associations, concerns over the power of money in judicial  races has reached a fevered pitch.

Causing the greatest distress is the growing prevalence of so-called “dark money” in state judicial campaigns. Traditionally, candidate-specific groups — the super PACs one hears of every election cycle — are required to disclose donors under federal and many states’ laws.

But after Citizens United, supposedly “independent” groups have been empowered to support candidates while receiving unlimited donations and without having to disclose their donors.

State Supreme Courts handle cases involving everything from the environment to consumer rights to criminal justice.

“They have a lot of power to impact individual lives and for that reason they’ve been attracting a lot of money,” said Alicia Bannon, the author of the new report and Senior Counsel for the Democracy Program at the Brennan Center. “It’s not something people pay a lot of attention to, but they have the ability to shape the legal environment around the state.”

How judges wind up on their respective state Supreme Court varies from state to state. Some are elected outright; others are appointed to their seats and then must run for re-election. One way or another, state Supreme Court judges must face the electorate at some point in 38 states.

In compiling “Who Pays for Judicial Races?” Brennan Center researchers relied on data from 76 races in 21 states that occurred during the 2015-16 election cycle. It compared those races to data going back as the early 2000s, when the center began looking at the issue.

Bannon said when all was said and done, the dollar amounts involved — both as money spent and the amount of untraceable corporate spending flowing into these races — is cause for concern.

“The era of low-cost, sleepy state supreme court elections is over,” Bannon said in a statement accompanying the report. “Judges are not politicians, and states need to act with urgency to address the threat big money poses to our judiciary’s vital role.”

According to the report, the 2015-16 State Supreme Court election cycle was the most expensive ever, with nationwide spending hitting about $70 million. The report’s authors also found almost half those contributions, about $27 million, filtered into these races as dark money of from third party groups whose donations are impossible to track.

Bannon said substantial money first started flowing into state Supreme Court races in the late 90s, when many states started changing tort laws which impacted liability for companies as well as the amount of punitive damages someone could collect in a lawsuit.

Business groups seeking to increase the business-friendly nature of the courts, started putting money into the races, she said. After that happened, trial lawyer, unions, and plaintiff attorney groups started pouring money to ensure their own interests.

“That lead to an arms race,” Bannon said. “The interest has been consistent with business on one side and plaintiff trial lawyers on the other.”

But the spending has since expanded from tort reform into other areas of the law.

Environmental issues were big in Louisiana’s 2015-16 race where $5 million was spent on one seat in connection to so-called “legacy lawsuits” which deal with the liability oil and gas companies have to restore property damaged by oil drilling.

According to campaign financing reports reviewed by the Brennan Center, the conservative-leaning judge in the contest got money from oil and gas companies. Meanwhile, the liberal-leaning candidate got outside support from Restore Our Coast PAC, which reportedly got their money from trial lawyers groups.

“These were high stakes cases with billions on the line,” Bannon said. “It’s not surprising that oil and gas companies, and plaintiff lawyer groups, were putting money in the races.”

Other campaign finance reform groups have taken notice of the issue. According to Brendan Fischer, director of federal and FEC reform at the non-partisan campaign finance watchdog group Campaign Legal Center, the influx of dark money could influence legal decisions made by the elected judges without the public knowing a conflict even exists.

“Litigants will have no way of knowing whether opposing parties contributed significantly to the judge’s election through contributions to dark money groups,” he said.

The costliest state supreme court election discussed in the report was one held in Pennsylvania in 2015. It is widely considered the most costly state supreme court race in history. There were three vacant seats that were being contested, and that meant the outcome could substantially sway the political leaning of the court.

Total spending in that race reached over $21.4 million, about $15 million more than the second highest race on record.

Maida Milone, president and CEO or Pennsylvanians for Modern Courts, a group that’s monitored the state’s Supreme Court races for 20 years and is an advocate for changes in the way judges are seated, agreed with Bannon’s assertion that party politics played a large role in the high cost of the contests.

“It was an opportunity to make an impact on the bench – either on the partisan leaning or the philosophies of the judges,” Milone said.

According to the Brennan Center report, about $5.7 million of the money spent on state Supreme Court races in Pennsylvania in 2015 was from independent groups that relied on dark money. It’s impossible to trace where it came from and what influence was expected in return, and Milone said that creates an appearance of impropriety that needs to be avoided.

The American Bar Association is similarly concerned with the growing prevalence of dark in state Supreme Court races. The professional organization has been advocating for publicly-funded elections, rather than privately-funded campaigns, since 2002.

“Judges are not representative officials but are responsive to the rule of law rather than constituencies,” reads a report the ABA released that year.

Marc Davis, a spokesman for the organization, said the ABA still stands by the conclusion in the report and by its call for publicly-funded judicial elections.

North Carolina has gone in the opposite direction. Bannon said the Tar Heel state is unique because its Republican legislators have used their veto-proof majority to change laws around state Supreme Court elections in a fairly obvious attempt to shift the state’s highest court to the right.

“There’s been some gamesmanship for partisanship and it’s a troubling trend because it undermines the appearance of courts playing a role outside politics,” she said.

North Carolina’s GOP lawmakers have removed primary races for state Supreme Court candidates, gone from state-funded to privately-funded campaigns, required candidates to declare a party affiliation, and reduced the number of seats the governor can appoint to the lower appellate bench.

Earls expressed concern about her future fundraising efforts for this reason. Civil rights law is incredibly meaningful and fulfilling, but for Earls and other attorneys who do most of their work in the nonprofit sector, it’s hardly a source of enormous wealth and a personal war chest to invest in a campaign.

Earls said she plans to hit the phones and pound the pavement and to the best she can to raise the funds she needs to be competitive.

“Without public financing, I am essentially running a campaign like any other state-wide campaign,” she said before pointing out the need for ads across the state’s seven TV markets.

“It’s intimidating, but I’m going to do the best I can,” she said.

NC state law also restricts where she can get donations from. She can’t take money directly from lobbyists or companies, and she, obviously, can’t work directly with a third-party PAC; but there’s not much she can do if a third-party group steps in to help or hurt her either.

“That’s what the current law allows, and I have no control over that,” she said. “I think there should be disclosure so voters know who is trying to speak in the political arena, but there’s nothing I can really do about that.”

One possible long-term solution would be to remove money altogether from the process of populating state Supreme Courts. In Pennsylvania, Milone’s group is calling for the state to move away from judicial elections and instead employ an appointment process with a nonpartisan group selecting candidates and then sending those names on to the governor for a final decision.

Milone said 16 states currently employ such a system.

“What we’re looking for in judicial candidates is temperament, experience you’ve had practicing law and being in the appellate courts, having the history of applying law to facts,” she said. “We don’t want politics in the judiciary.”
This is an option Bannon suggested as well. But if states continue to allow their state Supreme Court seats to be elected, she believes candidates should only be able to serve one term.

“If you’re hearing a case and you’re worried how that’s going to play out in your next election, that could impact how you play out that case,” she said, pointing to research showing judges sentenced more harshly in election years, among other impacts that could be connected to fundraising or campaign supporters.

As for Earls, she said she hopes the state Supreme Court races of 2018 will be marked by their civility, not the amount of money spent on them.

“Prosecutors become judges and we never ask if they can be independent against criminal defendants because they were previously prosecutors,” she said.

“Distortions and problems people associate with judges being elected are, at their root, problems with money in politics,” she said.

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