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New Report Looks at how State Judicial Seats are being bought

August 17, 2010

Spending on state Supreme Court elections has more than doubled in the past decade, from $83.3 million in 1990-1999 to $206.9 million in 2000-2009, and deep-pocketed special interests play a dominant role in choosing state jurists, according to a report released today.

For more than a decade, partisans and special interests of all stripes have grown more organized in their efforts to tilt the scales of justice their way. This surge in spending-much of it funneled through secret channels-has fundamentally transformed state Supreme Court elections.

The report, “The New Politics of Judicial Elections, 2000-2009: Decade of Change,” is the first comprehensive study of spending in judicial elections over the past decade. It was released today by the Justice at Stake Campaign, the Brennan Center for Justice at NYU School of Law, and the National Institute on Money in State Politics.

An Executive Summary of the report is available here. Among the report’s key findings:

  • Spending records were repeatedly shattered nationally and by state throughout the decade. Candidates raised $206.9 million in 2000-2009, compared with $83.3 million in the 1990s. Twenty of the 22 states that hold at least some competitive elections for judges had their most expensive election ever in the last decade.
  • A select group of “super spenders” is outgunning small donors. In the 29 costliest elections in 10 states, the top five spenders each averaged $473,000 per election to install judges of their choice, while all other contributors averaged only $850 apiece.
  • Judicial elections are increasingly focusing not on competence and fairness, but on promising results in the courtroom after election day. The tort reform wars have driven this trend, with a half-dozen national business-funded groups, and leaders of such corporate giants as Home Depot and AIG insurance, squaring off against plaintiffs’ attorneys and unions.
  • A TV spending arms race continues to escalate, creating a need for money that only special interests can satisfy. In 2007-08, $26.6 million was spent on Supreme Court TV ads, the costliest two-year ad cycle since tracking began in 2000. For the decade, supreme court candidates, special-interest groups and political parties spent an estimated $93.6 million on TV ads.
  • Special interests are committed to dismantling spending limits, eliminating merit selection of judges, and keeping campaign spending secret by assaulting decades of disclosure laws. A campaign is underway to persuade federal courts to downplay the Constitution’s due process guarantee by reinterpreting the he First Amendment to gut and weaken federal and state election laws.
  • Many judicial election spenders, including plaintiffs’ lawyers and corporations, have a passion for secrecy-using shell organizations to keep their role out of the public eye. Such strategies are likely to continue even after Citizens United, a Supreme Court decision that allowed corporate and union spending in elections. This could make a true accounting of special-interest spending impossible in 2010 and beyond.

In one section of the report that looks at individual states and judicial elections the information on Michigan does not bode well for those who care about democracy.

For much of the decade, four conservative Supreme Court justices dominated Michigan’s Supreme Court. Their opponents, who assailed the justices as an anti-plaintiff  “Gang of Four,” helped defeat Chief Justice Cliff Taylor in 2008. The four justices’ top supporters from 2000–09 included the Michigan Chamber of Commerce and the Michigan Republican Party. Top super spenders on the other side included the Michigan Democratic Party; the Michigan Trial Lawyers Association; and Citizens for Judicial Reform (CFJR), a group wholly funded by plaintiffs’ lawyer Geoffrey Fieger and his law firm. The state Democrats ran more than $1.1 million ads for 2008 winner Diane Hathaway, almost exactly offsetting the $1.2 million that the Michigan Chamber and GOP combined to spend on TV ads for Justice Taylor. In addition, the state parties and other PACS reported an additional $1 million in non-TV spending in 2008. Total Supreme Court spending in 2007–08 (candidate fundraising, independent TV ads, and $1 million in non-TV independent expenditures registered with state): $5.9 million.”

To view the whole report Justice at Stake, click here.

One Comment leave one →
  1. Kate Wheeler permalink
    August 18, 2010 4:49 pm

    This is an excellent report about a crucial topic. In particular, Michigan’s State Supreme Court has been stacked by special interest spending in such a way that it routinely overturns well-reasoned decisions from lower courts if there is even a hint of progressive thinking or if the decision runs counter in any way to corporate interests.

    In 2007, attorneys across Michigan participated in a blind study and the results showed that nearly 85 percent of them felt that the State Supreme Court had taken over decisions that belonged in the legislative branch exclusively; that about 80 percent felt that the Court’s decisions always favored insurance companies or corporate interests over individual citizens’ rights; and 80 percent felt that the State Supreme Court had created a pattern of decisions that eassentially denied the right of trial by jury to the citizens of Michigan by cancelling out jury decisions in favor of big business interests.

    That’s a huge majority, considering that many of those attorneys probably profited by those Supreme Court decisions. So it gives you an idea of just how bad this problem was three years ago. And it’s going to get worse, as you noted in your article, because of the changes to campaign contributions.

    If you lost a civil rights case in Michigan–and you’re the plaintiff–it’s likely your attorney will tell you not to bother to appeal to the Supreme Court level because it’s just wasted money. That’s a true subversion of justice.

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