Judicial Election TV Spending Sets New Record,
Yet Voters Reject Campaigns to Politicize the Judiciary
Seth Hoy, Brennan Center for Justice, firstname.lastname@example.org, (646) 292-8369
Eeva Moore, Justice at Stake, email@example.com, (202) 588-9462
For Immediate Release
WASHINGTON, D.C., Nov. 7, 2012 — Americans overwhelmingly rejected big-money attempts to hijack their courts on Election Day. The 2012 campaign saw record spending in state Supreme Court races, with Super PACs and other outside groups spending millions on TV ads and mailers seeking to influence judicial races. At the same time, voters rebuffed a series of costly campaigns seeking to make courts accountable to partisans and special interests, ignoring calls to unseat judges over their decisions, and rejecting referenda in three states designed to give politicians more power over the courts.
This year’s court-related campaigns also featured interesting side-stories, including spending by Super PACs, entry by the Koch brothers’ Americans for Prosperity into judicial elections, national politicians seeking to unseat an Iowa justice, and a viral video with TV stars that helped elect a high court candidate.
“The arms race around our courts is growing worse, but voters are seeing through campaigns to make courts more political and less impartial,” said Bert Brandenburg, executive director of Justice at Stake.
Although final fundraising totals are not yet available, spending on television advertisements in state Supreme Court races set an all-time record this year, totaling an estimated $27.8 million as of November 5, according to data provided by TNS Media Intelligence/CMAG and released by the Brennan Center for Justice and Justice at Stake—easily exceeding the record $24.4 million spent in 2004. (More than $31.7 million was spent in the 2011-2012 judicial election cycle, shattering the previous record of $26.6 million set in 2007-2008.) Ten states saw races where TV spending exceeded a million dollars, and seven states (AL, IA, KY, MI, MS, NC, OH) saw negative ads released in the final weeks before the election.
“Judicial elections this year were characterized by attack ads, record-breaking spending, and outsized influence by special interests,” said Alicia Bannon, counsel in the Brennan Center’s Democracy Program. “As judges face increased pressure to act like politicians, the integrity of our courts is at risk.”
Political parties and independent groups dominated this year’s races, in many cases relying on secret money that does not appear in campaign finance disclosure filings. More than 50% of all TV ads came from non-candidate groups, compared with roughly 30% in 2010. In Michigan, home of the nation’s most costly judicial race, the state’s two political parties vastly outspent the candidates for three seats on the state Supreme Court. The parties spent an estimated $7.4 million in the TV ad wars, according to CMAG data, compared with approximately $1.1 million in TV spending by candidates and other independent groups, with total spending in the state surpassing $8.5 million. The Michigan Campaign Finance Network estimates that TV spending by political parties was even higher, reaching $10 million this year. In North Carolina, outside groups including Super PACs drove TV ad spending to more than $3.1 million – higher than the state’s total TV spending from 2000-2010. Political parties and independent groups were the four top TV spenders in the general election season: the Michigan Democratic State Central Committee ($4.1 million), the Michigan Republican Party ($3.3 million), the Florida group Defend Justice from Politics ($2.7 million), and the North Carolina Judicial Coalition, a Super PAC ($2.6 million).
In yes-or-no judicial retention elections two years ago, three Iowa Supreme Court justices were unseated over a unanimous decision finding it unconstitutional to deny marriage to same-sex couples. Some predicted a new wave of ousters this year, but yesterday Justice David Wiggins won another term in office with 54.5% of the vote. And in Florida, an unprecedented special interest and partisan campaign failed to unseat three Supreme Court justices, who won by a 2-to-1 margin.
Voters also rejected referenda to change merit-based judicial selection systems in ways that could inject partisan politics into state courts.
In Missouri, 76% of voters rejected Amendment 3, a proposed constitutional amendment to give Missouri’s governor a greater hand in picking the nominating commission that screens judicial candidates. In Arizona, 73% of voters rejected a similar proposed constitutional amendment, Proposition 115. In Florida, Amendment 5, a referendum to require state Senate confirmation of Supreme Court justices who are nominated by the governor, was defeated by a margin of 63%-37%.
Three in four Americans believe that the special-interest money needed to finance such elections influences court decisions. From 2000 through 2009, the last decade for which data is available, fundraising by high-court candidates surged to $206.9 million, more than double the $83.3 million raised in the 1990s.
Overall, there were 20 states with contestable state Supreme Court seats in 2012, with a total of 46 seats at stake. Twenty-five high court judges in 13 states faced one-candidate retention elections, in which voters choose whether to give incumbents another term.
The following is a round-up of major trends and developments in the 2011-2012 judicial election campaign season, as identified by Justice at Stake and the Brennan Center for Justice. National TV spending data for judicial races, as well as links to ads, are available at “Judicial Elections 2012,” a web page jointly hosted by the Brennan Center and Justice at Stake. Additional analysis is also available at the Brennan Center’s “Buying Time 2012” web page.
Final estimates of TV ad spending, as recorded by TNS Media Intelligence/CMAG, are expected within a few days. Complete candidate fundraising data often are not available until weeks, and in some cases months, after the elections, meaning that campaign fundraising estimates tend to rise over time.
TV Ad Data
Television ads ran this year in 16 states with elections for the state Supreme Court: Alabama, Arkansas, Florida, Iowa, Illinois, Kentucky, Louisiana, Michigan, Mississippi, Montana, North Carolina, Ohio, Oklahoma, Oregon, Texas, and West Virginia.
Michigan saw the highest overall spending on Supreme Court TV ads, with about $8.5 million spent on airtime, according to TNS Media Intelligence/CMAG; a state-based watchdog group estimates that political parties spent $10 million on Supreme Court “issue ads,” based on an inspection of public inspection files at local TV stations. Alabama, with a contentious election for chief justice, was second in TV spending at $3.3 million. Alabama chief justice candidate Judge Bob Vance spent more than $1.5 million on his campaign, the most of any judicial candidate.
Of the $27.8 million in total TV spending, approximately $12 million was spent by candidates, while $15.7 million was spent by parties and independent groups.
A Closer Look at Key Judicial Races
Partisan Attacks in Florida, Iowa through Retention Elections
In Florida, all three Supreme Court justices appearing on a retention ballot won a new term after an aggressive campaign to unseat them over a few controversial rulings. Justices R. Fred Lewis, Barbara Pariente and Peggy Quince were targeted by Americans for Prosperity, the Republican Party of Florida and a tea party-linked group, Restore Justice 2012.
“Special interests and partisan politicians waged an unprecedented campaign to unseat three Florida justices. But Florida voters stood up for fair and impartial courts that resolve disputes based on the facts and the law, not partisan pressure,” Brandenburg said.
In Iowa, state Supreme Court Justice David Wiggins won a retention election after facing a major campaign to unseat him. Outside groups opposing Justice Wiggins pumped in national money, and two national Republican politicians, former Sen. Rick Santorum of Pennsylvania and Gov. Bobby Jindal of Louisiana, campaigned in Iowa against his retention. The Iowa GOP also opposed his retention. Opponents criticized his joining a unanimous 2009 ruling that permitted same-sex couples to marry; in 2010, the backlash swept three Iowa Supreme Court justices from the court.
“Iowa voters delivered a powerful message,” Brandenburg said, “that they will shield their courts when special interests try to intimidate judges.”
Justice Wiggins did not campaign or raise money in his own defense. According to the most recent state filings, retention opponents spent $466,125, including Iowans for Freedom, $317,794, and the National Organization for Marriage, $148,331. Pro-retention expenditures of $348,285 included the Iowa State Bar Association, $37,087, Progress Iowa, $4,939, Justice Not Politics Action, $301,191, and Human Rights Campaign, $5,068.
Florida’s Supreme Court had not seen a contentious retention election before this year. Americans for Prosperity, founded with the support of David and Charles Koch, released an advertisement opposing the justices and spent about $155,000, according to media reports. A pro-retention group, Defend Justice from Politics, released a TV ad urging voters to support the justices and to reject the “political power grab” by opponents of retention. The group spent more than $2.7 million on TV advertising by Nov. 5.
The targeted justices’ campaigns raised more than $1.5 million, according to state filings. “It’s terribly disappointing when judges have to raise big money from attorneys to defend against partisan attacks,” Brandenburg said.
“Judges need to be able to make hard calls based on the law, without looking over their shoulders at threats of political retaliation,” said Adam Skaggs, Senior Counsel in the Brennan Center’s Democracy Program. “It’s heartening that Florida and Iowa’s voters rejected attempts to politicize their courts.”
Referenda on Judicial Selection in Missouri, Florida, and Arizona
In Missouri, voters rejected a ballot measure that sought to undermine the Missouri Nonpartisan Court Plan, which has served as a model judicial selection system for impartial courts in more than 30 states.
Also defeated was the proposed constitutional amendment to require Florida Senate confirmation of state Supreme Court appointees. The amendment also would have given the legislature access to confidential records of the commission that investigates complaints against judges.
The Arizona measure, Proposition 115, would have allowed the governor to pick more members of the nominating commission, and eliminated a requirement that a final list of candidates recommended to the governor include individuals from different political parties.
“Tuesday’s vote will send a strong message around the country not to tamper with a system that has helped insulate judges from politics for decades,” Brandenburg said.
Judicial Ad Spending in Michigan Highest in the Nation
With three of seven* Supreme Court seats up for grabs in the general election, Michigan led the country in TV spending. Michigan saw more than $8.5 million and perhaps more than $10 million spent on judicial TV campaign ads, making it the highest spending state in the nation. A nominally nonpartisan judicial election model did not deter political parties and independent groups from dominating in TV spending in the races as they sought to influence the makeup of the court.
Michigan saw the most star-studded campaign video, as well as some of the most negative ads. Judicial candidate Bridget Mary McCormack’s campaign released an online video starring the cast of the hit TV-show West Wing. Part campaign ad and part public service announcement about the importance of voting for down-ballot Supreme Court candidates, it was the first-ever viral judicial campaign ad. McCormack herself also became the target of a particularly severe attack ad, in which she was criticized for offering to provide legal representation to detainees suspected of terrorism held at Guantanamo Bay.
Republican Stephen Markman and Democrat Bridget McCormack won eight-year terms to the high court, gaining 33% of the vote and 30%, respectively. Republican Brian Zahra was elected to a partial term on the court with 53% of the vote.
Despite the runaway spending, lax state disclosure laws mean that little is known about who funded the races. Even though nearly all of Michigan’s multi-million dollar TV spending has been financed by political parties and special interests, reported independent expenditures by parties and political action committees is only $679,094.
Judicial Ad Spending Stays High in Alabama
From 2000-2009, Alabama had the costliest Supreme Court races in the nation. With only one of five seats on the high court contested in the 2012 general election, spending was predicted to fall far short of previous years. While overall spending in the state remained low this year relative to previous cycles, a heated race for Chief Justice generated significant campaign expenditures, leaving Alabama with the second highest TV spending level in the country.
With Republicans dominating the high court, Democratic interest in Supreme Court races had waned in recent years, causing a drop in spending. However, former justice Roy Moore proved a controversial Republican candidate, as he was best known for his removal as Chief Justice in 2003 after defying a federal court order to take down a monument of the Ten Commandments he installed in the Alabama Judicial Building. Moore struggled to attract funding from business interests that traditionally fund Republican candidates, and was outspent by two opponents in the Republican primary. While Democratic candidate Bob Vance lacked Moore’s name recognition, he was able to attract some traditional Republican supporters — and donors — who viewed Moore as too extreme.
Vance spent more on TV ads than any other judicial candidate this year, but was unsuccessful. Moore won election to his old seat by 52-48%.
Super PACs Dump Millions into North Carolina Judicial Races
In one of the year’s most surprising races, Americans for Prosperity, other national groups and Super PACs dominated spending in a North Carolina Supreme Court contest. Incumbent Justice Paul Newby defeated Court of Appeals Judge Sam Ervin IV by 52-48% of the vote.
The court’s 4-3, right-leaning balance was at stake in the election. Justice Newby’s campaign was supported by more than $2.5 million in TV ad spending by a conservative Super PAC called the North Carolina Judicial Coalition. AFP pitched in with its largest effort ever to swing a judicial contest and spent $225,000 for direct mail. Another Super PAC, Justice for All NC, began airing an attack ad against Judge Ervin late in the race; the Super PAC has received $865,000 from a Washington-based group, the Republican State Leadership Committee.
Judge Ervin spent more than $300,000, and Justice Newby, more than $200,000, on TV ad spending. Total TV spending in the state was more than $3.1 million.
Both candidates participated in North Carolina’s public financing program for appellate judicial campaigns, and foreswore raising significant donations from attorneys and parties who might appear before them. But a recent court ruling bars the state from providing additional funds to candidates to compensate for Super PAC spending in support of their opponents.
“The flood of outside spending has put a tremendous strain on North Carolina’s public financing system for judicial candidates,” Bannon said.
Judicial TV Ads Turned Negative in Ohio
TV ads grew increasingly negative in the run-up to the Ohio Supreme Court election, with Ohio witnessing one of the nastiest ads of the season. A Republican Party ad in support of incumbent Justice Robert Cupp described candidate Bill O’Neill as having “expressed sympathy for rapists” while serving as a judge. In a letter to the Republican Party, the Ohio State Bar Association described the ad as misleading and stated that it “impugn[s] the integrity of the judicial system, the integrity of a candidate for the Supreme Court of Ohio, and erode[s] the public trust and confidence in the independence and impartiality of the judiciary.” Justice Cupp distanced himself from the ad, stating through his campaign committee that “he has not and would not approve a commercial like this.” The Ohio State Bar Association stated that Justice Cupp needed to go further and requested that the GOP cease airing the ad.
Democrat O’Neill defeated Republican Justice Cupp for a seat on the high court. Democrats Justice Yvette McGee Brown and Michael Skindell lost to Republican challengers.
After Expensive Primary, Texas Stays Quiet
In Texas, Justice Don Willett raised $1,686,031 in his successful reelection, spending a total of $1,167,930 on TV ads in the primaries. After his victory in the primaries, no money was spent on TV advertising by his campaign, as he faced only a nominal challenger.
All data on ad airings and spending on ads are calculated and prepared by TNS Media Intelligence/CMAG, which captures satellite data in the nation’s largest media markets. CMAG’s calculations do not reflect ad agency commissions or the costs of producing advertisements, nor do they reflect the cost of ad buys on local cable channels. The costs reported here therefore understate actual expenditures.
Justice at Stake is a nonpartisan, nonprofit campaign working to keep America’s courts fair and impartial. Justice at Stake and its 50-plus state and national partners educate the public, and work for reforms to keep politics and special interests out of the courtroom – so judges can protect our Constitution, our rights and the Rule of Law. For more about Justice at Stake, go to www.justiceatstake.org, or whttp://www.gavelgrab.org.
The Brennan Center for Justice at New York University School of Law is a non-partisan public policy and law institute that focuses on fundamental issues of democracy and justice. Its work ranges from voting rights to campaign finance reform, from racial justice in criminal law to presidential power in the fight against terrorism. A singular institution – part think tank, part public interest law firm, part advocacy group – the Brennan Center combines scholarship, legislative and legal advocacy, and communications to win meaningful, measurable change in the public sector. For more information about the Brennan Center, go to www.brennancenter.org.
*The original press release erroneously stated that three of five Michigan Supreme Court seats were up for grabs in the general election. There are seven seats on the court. The release has been updated from its original version.