This year, interest groups and political parties are spending millions in a knock-down, drag-out war to win control of Congress. But a new report published this week finds that those same groups may have another, less noticeable target in their crosshairs: state courts.
The report, published by a coalition of think tanks and watchdog groups, including the Brennan Center for Justice, finds that spending on state Supreme Court elections has more than doubled in the past decade, from a total of $83.3 million in the 1990s to $206.9 million from 2000 to 2009. The slow creep of special interest money in state judicial elections, the groups warn, may undermine the integrity and independence of the nation’s court system.
The study comes just months after a landmark Supreme Court ruling in January found that laws regulating the role of corporate spending in political campaigns violated the First Amendment. President Obama and others have criticized the decision as essentially enshrining the rights of major corporations to unduly influence public officials. In a forward to the Brennan Center report, former Supreme Court Justice Sandra Day O’Connor warned that the same could happen to state courts.
“This crisis of confidence in the judiciary is real and growing,” O’Connor wrote. “Left unaddressed, the perception that justice is for sale will undermine the rule of law that the courts are supposed to uphold.”
Much of the money spent on state judicial campaigns comes from a select group of “super spenders,” including major national corporations, labor unions and plaintiffs’ attorneys. Those groups have sparred repeatedly over the issue of tort reform, which is likely to be shaped in state courts rather than at the federal level, the report finds.
But social issues may play a role as well, especially this year. A failed Republican candidate for governor in Iowa is leading a major effort there to oust three state Supreme Court justices over their votes to legalize same-sex marriage last year. “I believe this election to unseat these three justices may be, if not one of the most, the most important campaign and election in our country,” Bob Vander Plaats, the effort’s lead organizer, told the Des Moines Register last week. The campaign has been endorsed by several national Republican leaders, including former House Speaker Newt Gingrich and Minnesota Gov. Tim Pawlenty. Both are seen as likely presidential candidates in 2012.
In Iowa, state Supreme Court judges are appointed by the governor from a list of nominees selected by a panel of legal experts and officials. Judges generally serve eight-year terms, after which voters decide whether to retain them in a yes-or-no vote on a statewide ballot. Only four judges in the state’s history have been removed from office, and none have been state Supreme Court justices.
Stephen Roberts worries that might change. A former member of the Republican National Committee and chairman of the Iowa State Republican Party, Roberts has come together with several Democrats to form a group called Iowans for Fair and Impartial Courts. The organization is “urging people not to, in effect, destroy what we think is a pretty good system that’s got a lot of integrity and quality over an individual decision,” Roberts said in a telephone interview.
“What we’re fearing is that you’re going to end up with judicial campaigns for retention, and judges will be out raising money to run, and have yard signs and television ads,” Roberts added.
That fear has already been realized in several other states, authors of the Brennan Center report found. Among the most famous examples is a case in West Virgina, where the head of Massey Energy Company — the same company involved in a deadly mine explosion in April that killed 29 workers — spent $3 million to elect a judge to the Supreme Court. That judge, in turn, participated in a decision that invalidated a $50 million judgment against the company.
The authors of the Brennan Center report warn that such corporate meddling in state court decisions could only become more common in the years to come.
“This explosion in spending fuels the growing public concern that judges will favor the biggest spenders,” Adam Skaggs, counsel to the Brennan Center, said in a statement. “That will mean increasing special interest pressures on judges — and increasing public concern that justice is for sale.”