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Judicial Elections: The New Favorite Target of Big Political Donors

The biggest campaign donors and spenders have long played an outsized role in most U.S. elections—for legislators, governors, right on up to the president. But, this year there’s an extra twist, showing that judicial elections are no longer an exception.

The Republican State Leadership Committee pledged to spend $5 million on judicial races in Illinois, Missouri, Montana, North Carolina, Ohio, and Tennessee this year. And, the New York Times recently featured one record-breaking race in Montana to illustrate the extent of the problem.

While an element of partisanship infuses politics, judicial proceedings are meant to be administered by fair and impartial adjudicators, free from such factors as the influence of money. For example, money cannot buy a litigant extra time to argue before a panel.

And the Supreme Court has acknowledged that spending in judicial elections can create a real risk of prejudice. In Caperton v. A.T. Massey Coal Co., Justice Kennedy wrote, “[T]here is a serious risk of actual bias - based on objective and reasonable perceptions - when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent.”

But the influx of money in judicial elections is not just about large donors seeking to influence particular cases. Rather, the money can lead to systemic biases that disproportionately impact politically disadvantaged communities.

In a new report, Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases, Professors Joanna Shepherd and Michael S. Kang detailed their study of more than 3,000 criminal appeals from 32 state appellate courts from 2008 to 2013. They analyzed the votes of individual judges and the number of television advertisements aired during the judicial elections from the same period. They issued two significant findings:

(1)  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.”

(2)  “Justices in states whose bans on corporate and union spending on elections were struck down by Citizens United were less likely to vote in favor of criminal defendants than they were before the decision.”

Professors Shepherd and Kang’s analysis only examined data through 2013. But, if 2014 is any indication, the forecast is only getting cloudier. This year, millions of dollars have been spent in Tennessee, North Carolina, and Montana (just to name a few) to stack state courts with conservative justices whose support comes from the wealthy elite, not the people.

The Supreme Court’s unsound decision in Citizens United emboldened corporations to dump large amounts of money into judicial elections. And, while the Court’s decision in Caperton suggests that it recognizes the problems that such practices have created, we must not stop there but keep working “for an enduring interpretation of the Constitution that empowers the People to enact protections that … make democracy work for all Americans.