A new poll commissioned by the Center for American Progress and conducted by Harstad Strategic Research found that 80 percent of voters support stronger disclosure laws for judicial campaigns, and this level of support is consistent among Democrats, Republicans, and independents. Voters across the political spectrum want to know who is paying for ads that attack judicial candidates, but in many states, disclosure laws do not apply to some ads that criticize candidates during an election.
The 2012 election saw record-breaking spending, as special interests poured billions of dollars into super PACs and secretive nonprofits that ran ads supporting or attacking candidates. At the state level, a record $29.7 million was spent to influence judicial elections across the country, according to estimates released by Justice at Stake and the Brennan Center for Justice in December 2012. Half of this money was spent by nonprofit organizations that often do not disclose their donors. In the wake of this surge in campaign cash, some states are looking to reform their judicial elections to minimize the influence of campaign cash or at least shed some light on secret campaign contributions.
In Montana, legislators are engaged in a bipartisan effort to pass a law to “require secretive outside groups in Montana to disclose who is funding their political advertisements.” This effort comes after a Montana Supreme Court election in which a mysterious nonprofit group ran vicious attack ads criticizing a candidate for representing a notorious murderer while he was a public defender. The Center for Public Integrity reports that the Montana Growth Network spent more than any of the candidates in the June 2012 primary, but the groups refused to disclose how much it spent in the general election. The group, organized under section 501(c)(4) of the federal tax code, characterized its general election ads as “issue ads” that are not covered by disclosure laws. The proposed Montana law would close this loophole. Republican legislators in Wisconsin, however, are going in the opposite direction and considering a bill that would open an “issue-ads” loophole, allowing even more secret money to influence its judicial elections.
Conservative legislators in other states are also looking to roll back reforms that the poll showed are just as popular with voters as increased disclosure of campaign contributors. Sixty-eight percent of the poll’s respondents, for instance, expressed support for nonpartisan judicial elections. Yet Republican legislators in North Carolina are considering a bill that would bring partisanship back into judicial elections. Despite the fact that North Carolinians overwhelmingly support the state’s existing nonpartisan election system, the newly Republican state legislature seems intent on making the state’s courts more partisan.
The poll also found that a clear majority of voters favor “merit-selection” systems in which an independent commission composes a list of potential judges based on their qualifications, from which the governor chooses a nominee. But Republican legislators in Kansas, Oklahoma, and Tennessee are trying to eliminate or weaken these merit-selection systems and give politicians more control over appointing judges. Sixty-one percent of Kansans said they opposed amending their state constitution to eliminate merit selection in a recent survey by Justice at Stake.
Judicial elections have seen an explosion of campaign cash in the past 10 to 15 years, and this money often comes from lawyers and litigants who have cases pending before the judges whose campaigns they are funding. The vast majority—80 percent—of the poll’s respondents said they would be less likely to vote for a judge who accepted campaign contributions from lawyers with cases pending before them. Seventy-two percent said that they support rules that would mandate that a judge step aside in any cases in which a lawyer or party contributed above a certain amount to his or her campaign.
Special interests that want to influence the law are using campaign cash to change the composition of state courts. The states that have seen the most campaign cash are more likely to rule in favor of corporations and against individuals. The poll results indicate that voters understand that these reforms could help ensure that judges are true to the law and not to political parties or campaign contributors. Quite simply: Judges should not be for sale.
Billy Corriher is the Associate Director of Research for Legal Progress at the Center for American Progress.