Around 85 percent of state judges must stand for election, yet these elections are often surrounded in public indifference and ignorance. Since the Citizens United decision opened the floodgates to dark money in politics, it’s had significant impact on judicial elections, too.
Members of the Tennessee Supreme Court take their seats Thursday, Dec. 18, 2014. In Tennessee, a record $1.5 million in TV spending was pumped into three Supreme Court retention races in which Justices Cornelia Clark, Sharon Lee, and Gary Wade retained their seats. Photo: Mark Humphrey/AP
WASHINGTON — It’s been a half-decade since the U.S. Supreme Court handed down its decision in Citizens United v. Federal Election Commission, the case that ushered in a new era of politics dominated and shaped by big, often anonymous money.
Other high-visibility cases since the Citizens United case have further rolled back federal restrictions aimed at limiting the influence of money in politics. These rulings are being further defined today as U.S. regulators debate how to implement the landmark decisions.
This paradigm shift – or, at least, paradigm strengthening – has mobilized a vast cross-section of progressive and some conservative groups, worried about the dilution of the U.S. political system. With the ruling’s five-year anniversary being marked on Jan. 21, watchdog and citizen groups across the country are planning public demonstrations and a re-sharpening of pushback tactics.
As yet, however, very little of this attention has been given to an entire set of Citizens United-related ramifications that are, arguably, even more disruptive. This is the yet-unfolding impact of the rollback in limitations that previously governed state-level judicial elections.
Around 85 percent of state judges in the United States must stand for election, with the rest appointed on what’s referred to as a merit basis. The mix of these systems varies by state, and is generally up to state legislatures to decide upon. There is a longstanding debate over these approaches, however, and this now looks set to become a major battleground — particularly at the level of the state supreme courts.
In addition, the U.S. Supreme Court will this week wade directly into the issue of judicial elections. On Tuesday, the justices are slated to hear arguments on whether judges can personally solicit campaign contributions. Under Florida’s judicial ethics code, such acts are barred, but those prohibitions are being challenged in a case known as Williams-Yulee v. The Florida Bar.
The last time the high court ventured into this area, in a landmark case involving the Republican Party of Minnesota, it allowed judgeship candidates to freely discuss their personal views on issues that may come before their court. The new Citizens United-related scenario is directly related to the Minnesota decision, and related concerns could now be further exacerbated by the Williams-Yulee case.
Seven percent change
Prior to the Supreme Court’s 5-4 decision in the Citizens United case, around half of U.S. states had rules in place banning independent expenditures around judicial elections, including from corporations and unions. This meant that outside pressure and interest groups were typically not taking part in running ads for or against state judges. Indeed, these elections have long been sleepy affairs marked by widespread public indifference and ignorance.
After the Citizens United decision, however, these bans were invalidated. Since then, there has been a large and sudden influx of money from special interests into these races. Total spending on television advertising reached almost $14 million for state supreme court races during the 2014 cycle, according to Justice at Stake, a nonpartisan watchdog group.
In the overwhelming majority of cases, that money goes toward negative, sensationalistic attack ads. Often, these attacks target a judge for an issue that has nothing to do with the ad purchaser’s true interests or goals.
“These were mostly proxies for other issues, with the attack usually focusing on a criminal justice issue,” Caroline Fredrickson, the president of the American Constitution Society, a progressive legal group, told MintPress News.
“‘Judge so-and-so let a child molester out of jail and that person is now working in a West Virginia school,’ for instance – that was actually used in the Massey Coal case.”
In this, Frederickson refers to an incident in which the CEO of the Massey Coal Company, Don Blankenship, reportedly set up a foundation to run attack ads on a West Virginia Supreme Court judge in 2004. (West Virginia did not have a rule in place to bar such spending.) The aim, Fredrickson says, was to “get rid of this justice, who was going to allow a case against [Blankenship] to move forward with big damages.”
This story and other such instances are included in a report the American Constitution Society helped to publish in October. That study, by researchers with the Emory University School of Law, offered one of the first attempts to consolidate mounting anecdotal evidence into early data on post-Citizens United judicial trends.
The researchers looked at some 3,000 criminal appeals decided at the state supreme courts in 32 states, as well as judicial decisions published between 2008 and 2013. Their findings were “tremendously illuminating and very, very depressing at the same time,” Fredrickson says.
At issue are not necessarily the high-visibility issues that would be of interest to major monied interests – environmental regulations, say. Such issues may motivate the push to affect judicial composition in the long run, but public advertising and attacks instead tend to focus on highly emotionalized social issues. This could include, for instance, previous rulings that a judge has made in murder, rape or pedophilia cases – particularly in letting defendants in such cases go free or with reduced sentences.
As a result, the Emory researchers found, the most direct impact of the Citizens United decision on state supreme court rulings appears to be an increase in judges’ decisions against defendants in criminal cases. In essence, the legal system could now be a bit more stacked against criminal defendants.
“The more TV ads aired during state supreme court judicial elections in a state, the less likely justices are to vote in favor of criminal defendants,” the Emory report states.
“As the number of airings increases, the marginal effect of an increase in TV ads grows. In a state with 10,000 ads, a doubling of airings is associated on average with an 8 percent increase in justices’ voting against a criminal defendant’s appeal.”
Correlation can be tracked particularly strongly in the 23 states that had barred outside spending in judicial elections prior to the 2010 Citizens United decision. In those states, the researchers found that judges were markedly less likely now to rule in favor of defendants in criminal trials.
“In these states,” the report states, “the removal of those prohibitions after Citizens United is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.”
Correlation does not equal causation, of course, and the Emory research is by nature preliminary. Still, such findings are stark, and offer huge reason for concern from a jurisprudential and even constitutional perspective, in addition to the inevitable impact that such patterns would have on public trust in the judiciary.
“Judicial elections are uniquely fragile in terms of what this pressure could do. Most of our politicians, for better or worse, come to the process somewhat steeled … But our judges typically don’t come up through this type of system,” Bert Brandenburg, the executive director of Justice at Stake, told MintPress.
“They’re not as used to it when someone is so outraged about a decision that they’re going to come after them. So there’s a risk that they’ll take that pressure more seriously, and the data is beginning to suggest that in some cases perhaps they are.”
Further, concerns are also now increasing around the possibility that increased politicization of the judiciary could have a real impact on the make-up of this branch of government. As big money and attack ads become more and more common in defining judicial elections, particularly for state supreme courts, this new vitriol and need for campaigning could turn off many from pursuing these positions.
“Are we creating a system that’s more likely to attract people to the bench that just see it as another stepping stone to a political career?” Brandenburg asks. “Because it’s politics … We’re hearing this, and it has a disproportionate impact on communities of color as well.”
This isn’t idle speculation, and such dynamics could already be having an impact.
“This new environment is very much turning off potential judges,” Russell Carparelli, a former judge on the Colorado Court of Appeals and former executive director of the American Judicature Society, told MintPress. “When I was a judge in Colorado, I was appointed on the merit system. If there had been an elected system, I don’t think I would have become a judge.”
Yet the legal community as a whole hasn’t yet recognized these patterns as significant enough to warrant sustained action. Several major legal associations either declined MintPress’s request for comment on this issue or failed to respond altogether.
“Within the bar associations at the state level there are some portions of the membership that are very interested in this, but it has not spread across the legal community yet. When you have a judicial election, then folks are getting interested locally,” Carparelli said.
“This is clearly an issue that should be discussed more, but I don’t think many people understand either the complexity or significance of many of these issues quite yet.”
That includes the vast majority of the public, most of which is largely oblivious to the specifics of judicial elections. On the one hand, then, more money in these elections, and the greater visibility this brings, could be a good thing.
On the other hand, though, observers say the tenor and substance of the advertising funded by special interests have thus far not been conducive for public education. Instead, these ads often focus on outlandish and, in many cases, misleading claims and contextualization.
Carparelli says the solution to this issue is local education. Since 2007, he has helped to start state-level and national programs aimed at strengthening this type of outreach.
For now, he says, the country’s judicial system is at a point of tension. The judiciary is becoming increasingly politicized, but critics of this process are only slowly recognizing the significance of what’s taking place.
The fight will now move to the state legislatures, he says, including in the ongoing debate over the extent to which judges should be elected versus appointed.
“What we want the public to understand is that if you bring politics into the judicial process, that can hurt you just as much as it helps you,” Carparelli said. “Once you create that political battle, you’re off to the races.”