Big Money Finds a Way Into Judicial Elections

Big-money politics and TV attack-ad campaigns have invaded the once-staid world of judicial elections in recent years, a trend that highlights the difficulty of truly limiting the influence of money in politics.

Election spending by state supreme court justices has more than doubled since 1994, according to a report to be released today. But spending by interest groups has grown even faster, so much so that candidates for judicial seats sometimes have been turned into bystanders in their own races.

In Ohio, Michigan, Alabama and Mississippi, business advocates and trial lawyers staged multimillion-dollar media campaigns two years ago over state supreme court seats. Nearly 12,000 such TV ads ran in Ohio alone during 2000, and most of them either attacked or defended Justice Alice Resnick, a liberal member of a closely divided state high court.

Because the TV spots were deemed “issue ads” funded by independent groups, they were outside the restrictions set by law. Although the state spending limit for supreme court campaigns was $550,000, the media campaign over Resnick’s reelection cost an estimated $8 million.

“In 2000, a new and ominous politics of judicial elections emerged,” says a report by the Brennan Center for Justice at New York University and the National Institute of Money in Politics. It cited a “flood of spending, TV buys and negative ads” in several key states.

Judges in 38 states are elected, either directly by the voters or through a “retention” election, as in California. State supreme court justices raised a total of $45.6 million for their 2000 campaigns, a 61% jump over 1998.

By coincidence, the report highlighting the growing influence of money in judicial elections comes as Congress is seeking to limit the effect of big money on federal elections.

Advocates of campaign finance reform want to stop the unlimited flow of money into political parties. This so-called soft money fuels media campaigns in which the parties tout the positions of their candidates or deride the opposition. However, they stop short of telling the viewers to “vote for Smith” or “dump Jones.”

Outside groups that fund issue ads are entitled to even greater protection under the 1st Amendment’s guarantee of freedom of speech. As a result, business advocates and trial lawyers can spend freely in hopes of swaying judicial elections.

The U.S. Chamber of Commerce targeted several states where the elected judges were seen as overly friendly to plaintiffs and their lawyers.

“Business stepped up to the plate and said we need to focus on what this state supreme court is doing to the business climate in Ohio,” said Andrew Doehrel, president of the Ohio Chamber of Commerce. “We have four individuals on this court who say they are going to make the law, and they are anti-business and anti-job creation.” He was referring to the 4-3 liberal majority that struck down a state law that limits jury verdicts.

“This was not a political campaign. It was an informational campaign. We undertook to educate the electorate about this court,” Doehrel said.

The trial lawyers and unions say they poured money into the Ohio race to counter big spending by business.

“The corporations can just write a check. They figure they can buy a state supreme court justice for $2 million in Alabama or Ohio. It’s legal, but we think it’s not a good thing,” said Richard Mason, executive director of the Ohio Academy of Trial Lawyers. He said the trial lawyers spent about $1.5 million on the Resnick race, while the business groups spent more than $5 million.

Despite the spending barrage, Resnick was reelected with 57% of the vote.