BIG CAMPAIGN SPENDING AT STATE-LEVEL FLIES UNDER THE RADAR

With all the focus on the Presidential and Congressional elections, the enormous amounts of money spent on state-level races and ballot questions has gone largely unnoticed. Coverage by the mainstream corporate media is minimal, in part due to cuts in budgets for reporting that increase corporate profits. But that’s a whole other topic.

According to the National Institute of Money in State Politics (NIMSP), a small Montana nonprofit that has the most detailed nationwide records, spending in state and local races is likely to exceed $3 billion this year. [1] This may not seem like a huge sum when spread across many elections in 50 states, but a relatively small amount of money can have a big impact on state races and ballot questions. For example, the cost of a campaign for the most expensive state legislative seat in the country, a Virginia Senate seat, is “only” $500,000. And $1 million or so can fund a successful campaign for a state Supreme Court seat. [2] Campaign spending that can swing the outcome of a state election represents a modest investment for a corporation or individual with a significant financial interest at stake. [3]

The portion of campaign money contributed to state and local races by individuals is typically less than half of the total and stands at 38% for the 2016 elections. The rest is donated by political groups, corporations, unions, and other organizations. [4] The amount of money coming from out-of-state sources and dark money entities is growing. The portion of spending in state elections for which voters know the true identity of the original donor has declined from three-fourths in 2006 to only one-fourth today. [5]

The most disturbing aspect of state campaign spending is the growing spending on judicial elections by those with vested interests in court decisions. (See this previous post for more details.) These inherent conflicts of interest threaten the integrity of our judicial system. In addition, growing spending on judicial races by the political parties is politicizing our state courts and undermining their impartiality.

More than $26 million was raised for judicial races in the 27 states that had judicial elections this fall. In Texas, where over $2 million was raised, the major donors are law firms who have a clear vested interest in judicial decisions. Louisiana, Ohio, and Wisconsin also had judicial races that attracted over $2 million. [6] In addition to trial lawyers, corporate-funded groups (such as energy, medical, insurance, manufacturing, and real estate interests) and unions have been big donors to judicial races. Education funding and charter school issues have emerged as important judicial issues in Washington State and Louisiana. Therefore, those with a financial stake in those decisions have emerged as large campaign donors for Supreme Court races in those states.

Many of the donors to judicial races are frequent litigants in state courts. This raises serious concerns about conflicts of interest and the possibility that judges will need to (or should) recuse themselves from significant numbers of cases. However, because of weak disclosure laws and the presence of dark money (where the true donors are hidden from the public), in many cases the presence of a conflict of interest may not be publicly known.

Furthermore, the advertising for or against judges, which is how most of the campaign money is spent, tends to focus on criminal cases, even though the real interests of those paying for the ads are in the arena of civil and commercial cases. A common strategy is to attack a judge as “soft on crime” or to highlight a high-visibility, emotional case and criticize the judge’s handling of it without discussing any of its complexities or legal issues. Not only does this affect voting in elections, but there is evidence that it affects judges’ decisions in criminal cases. [7] (See this previous post for more details.)

Donations from political party-affiliated groups politicize judicial elections, which are most often, technically, non-partisan. The Republican State Leadership Committee has been particularly active, spending over $4 million on this year’s state judicial races. Politically-affiliated donations create the perception – if not the reality – that judicial decisions are made on political grounds, rather than impartially based on the law. [8]

Allowing individuals and groups with financial or partisan interests to donate large amounts to judges’ election campaigns undermines the credibility of our court system. These donations compromise judicial impartiality, fairness, and independence, which are essential in a democracy.

There are two solutions to the problems raised by large campaign donations to judicial races:

  1. Appoint judges using a good, non-partisan process with reasonably long or lifetime terms (with a mandatory retirement provision); or
  2. Establish citizen funding and effective regulation of judges’ elections including:
    • Partial public financing through matching of individuals’ small donations in exchange for limits on spending and the size of contributions;
    • Tight regulation and full disclosure of outside, truly independent spending; and
    • Strong conflict of interest and recusal standards for judges.

(See this previous post for more details.)

A fair and impartial justice system is essential in a democracy. Judges need to serve the public interest and not be beholden to wealthy special interests. Therefore, judges should be appointed by a transparent, non-partisan process. If judges are elected, it is critical to have a well-structured and regulated campaign finance system that prevents special interests from having undue influence.

[1]      Quist, P., 10/17/16, “$1 Billion…and Counting,” National Institute of Money in State Politics (http://www.followthemoney.org/research/blog/1-billion-and-counting/)

[2]      Johnson, G., 11/1/16, “A look at notable state supreme court races in 2016,” The Washington Post

[3]      Chisun, L., Valde, K., Brickner, B.T., & Keith, D., 6/26/16, “Secret spending in the states,” Brennan Center for Justice (http://www.brennancenter.org/publication/secret-spending-states#Introduction)

[4]      Light, J., 10/13/16, “The $1 billion election no one is noticing,” Moyers and Company (http://billmoyers.com/story/candidates-state-offices-raised-one-billion-dollars/)

[5]      Chisun, L., et al., 6/26/16, see above

[6]      Light, J., 10/13/16, see above

[7]      Brennan Center for Justice, 10/18/16, “New analysis: Outside spending surges in important state judicial races as Election Day nears,” New York University School of Law (https://www.brennancenter.org/press-release/new-analysis-outside-spending-surges-important-state-judicial-races-election-day-nears)

[8]      Brennan Center for Justice, 10/18/16, see above

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