In the lead-up to the North Carolina Supreme Court elections in 2014, one campaign ad in particular raised eyebrows:
Sepia-toned and backed by sinister-sounding music, the TV spot showed a girl in pigtails pedaling away on a tricycle and an empty, still-spinning merry-go-round, while a narrator urged voters to consider the safety of children.
“Justice Robin Hudson: not tough on child molesters, not fair to victims,” the narrator ominously concluded.
Funded by “Justice for All NC,” a political action committee bankrolled by the Republican State Leadership Committee (RSLC), the ad aired 1,490 times in the months before the election, costing a total of $689,530, according to a report released this October by NYU Law School’s Brennan Center for Justice, and the non-profit advocacy groups Justice at Stake, which wants to end judicial elections and implement stricter regulations on campaign finance, and the National Institute on Money in State Politics, which seeks greater transparency in elections and maintains a campaign-finance database of donations.
The report’s authors say the attack ad is just one example of how outside spending — meaning expenditures not made by, and often without the approval of, a candidate’s campaign — now plays an outsized role in state judicial elections. In 2013 and 2014, outside spending accounted for 40 percent of the total cash spent in state judicial elections, a record for non-presidential election cycles.
Titled “Bankrolling the Bench” , the report looks at spending in 46 state Supreme Court elections across 19 states from the 2013-2014 election cycle, and is the eighth such study published since 2000.
“It seems to me outside spending is approaching a tipping point,” said Scott Greytak, one of the report’s co-authors and a lawyer with Justice at Stake. "It’s on a path where the majority of spending could soon be from the outside.”
The report also found a few key players mainly were responsible for spending — the top ten TV ad purchasers paid for 67 percent of total TV spending — and these big spenders are also increasingly national in scope: special interests or party-affiliated groups such as the RSLC with agendas much bigger than a particular court, according to the report.
Alicia Bannon, a lawyer with the Brennan Center and another of the report’s co-authors, said outside spending and attack ads are related: Outside groups can often conceal the individual identities of their donors, so they’re more likely to “go negative.”
According to the report, 56 percent of TV ads focused on whether a judge is “tough on crime,” another record. Every single ad that the report classified as negative in the 2013-2014 cycle was funded by an outside group, Bannon said.
Although state court races have long been contentious affairs, and state supreme court races have long been expensive, these races are often officially non-partisan, meaning there is no party primary and if the candidate is registered with a party, it does not appear on the ballot.
According to Ballotpedia , only seven states hold partisan state supreme court elections; nine states hold partisan appellate court elections; and 20 states hold partisan trial court elections.
Big Law Business reached out to the RSLC for comment on the Hudson “child molester” attack ad, and Ellie Wallace, a spokesperson for the group, emailed the following statement:
“For years, liberal trial lawyers and labor unions have invested millions into advancing their self-interest through judicial elections. The RSLC’s Judicial Fairness Initiative identified a very important need to provide balance to the information flow, so voters can make informed decisions about judicial candidates and their records. Our engagement in North Carolina, as it is in any state, has been reflective of that mission.”
Greytak and Bannon, too, characterized judicial elections as battles in a larger war between business interests and Republicans on one side, and trial lawyers and Democrats on the other, each side accusing the other of firing the first shot, or escalating the conflict.
Neither side seems ready to stand down when it comes to hyper-negative attack ads, either. Justice Lloyd Karmeier of the Illinois Supreme Court, a Republican, faced a retention election in 2014. One of the ads against Karmeier struck similar notes as the ad against Hudson.
“The worst of the worst: predators abusing children, rapists, murders ... let off easily,” the ad’s narrator began. “In one case, Judge Lloyd Karmeier gave easy bail to a woman later found guilty of murdering her four-year old stepson. Karmeier gave probation instead of prison to a man who sexually assaulted a child and to thieves involved in the near-fatal beating of an elderly woman.”
The attack ad was sponsored by a group called “Campaign for 2016,” a political action committee whose biggest donors, according to Greytak and Bannon, were Power Rogers & Smith , a personal injury firm in Chicago, and George Zelcs and Christine Moody, partners at Korein Tillery , a plaintiff’s firm with offices in St. Louis and Chicago.
The attack ad on Karmeier ran 823 times, with a total price tag of $500,400. The RSLC responded by running an ad bolstering Karmeier’s criminal justice record 673 times at a cost of $731,260.
No Illinois Supreme Court Justice had ever lost a retention election since the “yes” or “no” system was first put in place 50 years earlier in 1964, but Karmeier came close: He held onto his seat by only 2,921 votes, or less than one percent.
Neither Zelcs, Moody, nor Power Rogers & Smith returned requests for comment.
Almost 9 out of 10 Americans believe campaign cash is affecting courtroom decisions, according to a 2013 Brennan Center poll.
Ad makers have tried to exploit this growing mistrust: In 2014, Campaign for 2016 ran an ad against Karmeier, attacking him because in 2004, when Karmeier was first running for the Illinois Supreme Court, outside groups supporting his campaign accepted $4 million from “allies” of State Farm Insurance and Philip Morris.
Karmeier was elected to the bench, and subsequently voted to overturn a multi-million dollar judgment against State Farm, and to overturn a $10.1 billion judgment against Philip Morris.
Last week, the state Supreme Court struck down the award in the Philip Morris case for a second time. Karmeier declined to comment, and State Farm and Philip Morris could not be reached.
Greytak and Bannon reiterated that, even if it’s unclear whether donations like these are actually influencing judge’s decisions, there’s no doubt it creates the perception of a conflict.
Ken Gross, a partner who practices political law out of Skadden Arps’ Washington, D.C. office, said the influx of money is only amplifying America’s increasingly “corrosive” politics, a phenomenon from which the judiciary used to be somewhat shielded.
“Now judges run around with Democratic and Republican labels on their foreheads,” Gross said. “It’s just downright unseemly. If we don’t get our arms wrapped around it, we’re going to have some real problems in the administration of justice.”
According to Greytak, spending from outside groups made up about 30 percent of the total in 2009-2010. After the Supreme Court’s decision in Citizens United v. FEC, that number jumped to 42 percent.
“It’s essentially created an arms race situation,” he said. “It’s a high-stakes fight for the ideological composition of these courts.”
Outside spending persists even when the candidates and other local leaders object. According to a local news report , after the “child molester” ad ran against Hudson in 2014, six former state supreme court justices, the American Bar Association, and even her opponent, Eric Levinson, spoke out against the ad.
In an interview with Big Law Business, Levinson doubled down on his condemnation of the ad: "The television ads were unfair and destructive,” he said.
Last week, Pennsylvania voted on three state supreme court seats, following a hotly contested election. One ad in particular, sponsored by Pennsylvanians for Judicial Reform, alleged Republican candidate Michael George had “failed to protect women and children.”
The spot was done up in dark colors, and more of the sinister-sounding music was back. According to the ad, George had taken it easy on "a man who raped a three-year old girl” and a “convicted criminal with a history of violence against women.”
“Can Pennsylvania riskMichael George?” the ad wanted to know.
Pennsylvanians for Judicial Reform, the group behind the ad, raised at least $2.2 million in preparation for the elections. Their biggest funder was the Philadelphia Trial Lawyers Association, who did not return requests for comment. Like the attack ad in North Carolina, the ad is emblematic of the most recent picture of judicial elections: Crime is the wedge issue, and the funder is a wealthy, outside group.
Although Citizens United has seemingly opened the floodgates of third party financing, the Brennan Center report highlighted an April 2015 U.S. Supreme Court caseWilliams-Yulee v. The Florida Bar, which prohibited a state court judge from personally soliciting campaign contributions. Central to the Court’s opinion was the need to protect the integrity of the courts.
“It indicates the Court might be pulling back fromCitizens United just a hair,” Hudson said of the case. “There are reasons for optimism.”
For now, outsiders retain unfettered freedom in state judicial elections. In Pennsylvania last week, Democrats went on to win all three Supreme Court seats that were up for grabs, giving them a majority on the court.
Spending in the three races totaled over $16.5 million . According to the Brennan Center, it set a new national record for spending in a state supreme court election.