In the 2016 election cycle, state supreme court campaigns were outspent by independent groups, most of which were funded in whole or in part by undisclosed, secret donors, according to the Brennan Center for Justice. “Ten states saw television spending in excess of $1 million,” the Center reported, and of the 20 groups buying ads, “only three were fully transparent.” The Republican State Leadership Committee, or RSLC, was the biggest spender in these elections. Out of $20 million spent, the RSLC spent $4 million in eight states. The group’s largest donors include tobacco companies, insurers, fossil fuel companies, and secret-money groups. This column examines contributions to and independent spending for judges who were elected with more than $1 million in campaign cash.
Last month, Michigan Supreme Court Justices David Viviano and Joan Larsen were re-elected with the help of $2 million from the Michigan Chamber of Commerce. Justice Viviano raised more than $900,000, including large contributions from political action committees, or PACs, representing realtors and insurance companies. Justice Larsen, who appeared on the list of President-elect Donald Trump’s potential U.S. Supreme Court nominees, collected more than $0.5 million from many of the same big business PACs and other donors. Though the election was nonpartisan, both candidates were nominated by the state Republican Party, a big spender in recent supreme court races.
The state chamber of commerce has a long history of spending big to elect conservative justices, and the group has advocated laws that make it harder for injured persons to recover damages in lawsuits. For decades, the group was barred from buying political ads by a Michigan law prohibiting corporate-funded political ads, but that law was ruled unconstitutional in the U.S. Supreme Court’s 2010 Citizens United decision.
The Arkansas Supreme Court race was dominated by the Judicial Crisis Network, a secretive independent group based in Washington, D.C. The group spent more than $750,000 to elect Chief Justice Dan Kemp, a conservative whose campaign raised around $400,000. The Judicial Crisis Network has spent big in other recent Arkansas Supreme Court races. It is one of the RSLC’s largest contributors, and it refuses to disclose its donors.
The nursing home industry has also spent millions to influence Arkansas judicial elections. A judge in 2015 pleaded guilty to bribery after he reduced a verdict against a nursing home whose owner had given him a large campaign contribution. The industry recently backed an attempt to amend the state constitution to limit lawsuits against nursing homes.
The most expensive judicial race in history occurred last year in Pennsylvania, with total spending reaching nearly $16 million. Three Democratic candidates were elected after raising millions of dollars from labor unions, trial lawyers, and other donors. Justice Kevin Dougherty raised more than $4 million, and his top 10 donors were labor unions and the Pennsylvania Future Fund PAC. Justices David Wecht and Christine Donohue also raised millions, including large donations from unions and PACs. A PAC called Pennsylvanians for Judicial Reform independently shelled out $2.9 million to help the three Democrats.
In 2015, there was an unusual number of Pennsylvania Supreme Court seats on the ballot—three out of seven. Twelve candidates competed in the primaries, and seven ran in the general election. Two of the openings resulted from ethics scandals. One justice was convicted of requiring her government staff to do campaign work, and another was implicated in a scandal involving government officials exchanging racist and sexist emails.
Justice Beth Walker was elected in May after the RSLC spent $2 million to support her. She also raised $0.5 million from mining interests, according to followthemoney.org. Her opponent, Justice Brent Benjamin, opted into a new public financing program that was created after a scandal involving his 2004 election. Coal mogul Don Blankenship had spent $3 million to elect Justice Benjamin, who later admitted that he was “tone deaf” in not recusing himself from a subsequent case involving Blankenship. Since then, the state legislature has switched from partisan to nonpartisan judicial races and created a public financing program that gives judicial candidates several hundred thousand dollars in campaign funds if they qualify by raising a certain number of small donations.
Justice Mike Morgan recently won a seat on the North Carolina Supreme Court with the help of $1.4 million worth of ads from the N.C. Families First Super-PAC, which received large contributions from the Democratic Governors Association and several secret-money groups. Some of these groups publicly support progressive causes, such as funding for education. The Democratic Governors Association collected large contributions from labor unions, insurers, and major corporations.
Justice Morgan’s victory created a new 4-3 liberal majority on the state supreme court, but the state legislature is considering a bill to limit the court’s review of the legality of new laws. Another bill would switch North Carolina Supreme Court elections from nonpartisan to partisan races, which have historically seen much more campaign cash. The legislature has already repealed public financing and tried to rig this year’s election to ensure a conservative majority on the court.
Appointed last year by Wisconsin Gov. Scott Walker (R), Justice Rebecca Bradley was re-elected after a secret-money group, Wisconsin Alliance for Reform, spent nearly $2 million to support her. The group was registered by a former leader of the Koch brothers-linked Americans for Prosperity, or AFP. AFP has been linked to other groups supporting conservative supreme court candidates, such as Wisconsin Manufacturers and Commerce, or WMC, and Wisconsin Club for Growth, or WCG.
Gov. Walker’s 2011 reelection campaign was investigated for operating through these secret-money groups, which can accept unlimited donations. Recently leaked documents revealed that corporations gave these groups hundreds of thousands of dollars at the campaign’s request, including $750,000 from a lead paint company. WMC and WCG also spent more than $10 million to elect the Wisconsin Supreme Court’s conservative majority, which shut down the campaign finance investigation in 2015—despite the glaring conflict of interest. The court’s rule on recusal, adopted by the conservative majority in 2010, was written by WMC and another campaign spender, and it says that campaign cash can never be the sole reason for recusal.
Conclusion: Getting big money out of state supreme courts
The continued rise in judicial campaign cash should lead judges and legislators to address the resulting conflicts of interest. Stricter ethics rules can help keep judges from hearing cases involving campaign donors. Events in Pennsylvania have led some legislators to introduce changes to how the state chooses judges. Some reformers have suggested a focus on eliminating the pressures that come with judges’ reselection, and some state bar groups have proposed limiting judges to a single long term. Montana has seen an increase in spending in its supreme court races, and the state legislature recently strengthened the rules on disclosing donors to secret money groups.
In 2016, supreme court elections in North Carolina and Wisconsin were flooded by cash, years after state legislatures eliminated public financing. But the final elections under the two programs were also overwhelmed by independent spending, just like the new program in West Virginia. This independent spending, much of it unleashed by Citizens United, requires reformers to consider more flexible public financing programs, such as small donor-matching programs similar to those in some municipal elections. Flexible public financing programs empower small donors, not wealthy lawyers and corporations.
Billy Corriher is the Director of Research for Legal Progress at the Center for American Progress. Hannah Shulman, an intern at Legal Progress, contributed to this work.