The Center for Public Integrity examined 10 high-profile state supreme court elections in 2012 and 2013 where outside spending was a factor. At least a third of the $11.7 million spent by independent groups — collected from campaign finance reports, tax records and documents filed with the Federal Communications Commission — originated outside the election states, mostly from Washington, D.C.-based organizations.
Tracking all outside spending is nearly impossible thanks to lax state disclosure rules, as well as a loophole in the federal tax code that allows politically active nonprofits to run attacks ads without disclosing who funds them.
Out-of-state influence likely helped decide races in North Carolina, Iowa and Mississippi.
The influence of nonprofits and super PACs has changed the nature of state supreme court races, formerly shielded, at least in part, from the influence of money and partisan politics. Now, in many states, justices are involved in bare-knuckle partisan brawls similar to those that characterize non-judicial elections.
In the 10 state races analyzed by the Center, national political groups were active directly or indirectly in seven. Seventy-five percent of the outside money could be traced to the long-running battle between trial lawyers and business interests.
Trial lawyers helped carry the day in Florida, Louisiana and Oklahoma, while the U.S. Chamber of Commerce says it was successful in North Carolina, Michigan, Ohio and Mississippi.
In North Carolina, supreme court campaigns are mostly funded by taxpayers to spare candidates from having to raise significant money and appear beholden to individuals, companies or interest groups that may face them in court. The outside money in last fall’s race overwhelmed the public finance system, rendering it largely irrelevant.
Justice for All NC, which spent $1.7 million to influence the race, got 68 percent of its money, or $1.2 million, from the Washington, D.C.-based Republican State Leadership Committee. The group in 2010 spearheaded a Republican effort to elect GOP state legislators, who would determine the boundaries of congressional districts following the U.S. Census.
The U.S. Chamber of Commerce’s Institute for Legal Reform gave $3.5 million to the RSLC in 2012, making it the largest single donor to the national Republican group last year. The Institute, a major foil of trial lawyers, lobbies for legislation that would mandate lower damage awards in civil trials.
The anti-Ervin ad was just one part of what appeared to be a coordinated effort between a network of groups with ties to the D.C. area to defeat Ervin and keep Newby on the bench. Officials from RSLC did not return calls seeking comment.
The D.C. money arrived early and stayed late.
In August, the Washington, D.C.-based nonprofit Judicial Crisis Network gave $75,000 to pay for radio ads supporting Newby. The group doesn’t disclose its donors.
Starting in October, another group, the N.C. Judicial Coalition, which received $1.5 million from Justice for All NC, blanketed the state with TV ads featuring a banjo player crooning about Newby’s tough stance on crime.
The North Carolina arm of Americans for Prosperity, the northern Virginia-based group tied to billionaire industrialists Charles and David Koch, spent $225,000 on mailers in late October calling on Newby to “keep standing up for taxpayers.”
The icing on the cake was the attack ad against Ervin just days before the election.
Ervin too had help from outside groups, though they spent only $71,500 on his behalf.
The ultimate provenance of much of this money is a mystery to the public. Those in the know aren’t talking and the disclosure rules in state campaign finance laws and federal tax codes mean they are not required to.
“The average voter doesn’t need to trace every dollar to figure out whether to vote for a candidate,” says Judicial Crisis Network’s chief counsel, Carrie Severino.
Former U.S. Supreme Court Judge Sandra Day O’Connor against judicial elections:
Former U.S. Supreme Court Judge Sandra Day O’Connor said Monday that Floridians should vote to eliminate popular elections for the judiciary the next time the issue appears on the ballot.
“Close to 20 states in the United States elect their judges in state elections. No other nation in the world elects its judges,” said O’Connor.
The issue was discussed during “A Conversation about Judicial Reform,” the inaugural event for the Allen L. Poucher Legal Education Series at the University of Florida.
A panel discussion hosted by the University of Florida Law Review featured O’Connor, U.S. Court of Appeals Judge for the 11th Circuit Rosemary Barkett and Florida Supreme Court Justice Peggy Quince.
The discussion was moderated by Martha Barnett, former American Bar Association president. More than 1,300 people attended the event at the Phillips Center for the Performing Arts.
When asked what she thought was the biggest challenge facing the judiciary, O’Connor talked about popular election of judges.
“We didn’t start that way. When our states formed, every one of them had a system like the federal one, appointment by the governor and maybe some confirmation process,” she said.
“Through the years, a populist movement rose, starting with Georgia and extending to other states. A number of states changed to popular election of judges and that has remained true today,” said O’Connor.
O’Connor cited a problem with it.
“It does not work well because it requires raising money for campaigns. You know who gives the money, the very people, either clients or lawyers, who are most apt to appear before the judge,” said O’Connor.
“It’s a terrible way to operate and it’s embarrassing that our country is the only country to do that.