Close to four months after the Supreme Court's landmark ruling to roll back restrictions on corporate political spending, conservatives continue to downplay its significance.
Predictions that the Citizens United v. Federal Election Commission ruling will unleash a torrent of corporate money are wildly overblown, free speech advocates insist. As evidence, they argue that corporate money has yet to flood elections in the 26 states that already impose no limit on corporate spending.
But a closer look at state-level elections suggests that independent political expenditures by corporations, unions and other special interests are substantial. This is particularly true in judicial elections, which have gotten dramatically costlier, nastier and more controversial over the past decade. The Citizens United ruling may impact judicial races even more drastically than federal elections, some experts argue.
Campaign spending in state Supreme Court elections for the 2008 cycle topped $45 million, continuing a trend that started in the early 1990s, according to Justice at Stake, a nonprofit promoting judicial impartiality. Judicial campaign fundraising totaled $206.4 million between 2000 and 2009, according to a forthcoming Justice at Stake report, more than double the $83.3 million raised between 1990 and 1999.
Corporate money dominated those expenditures, according to Justice at Stake spokesman Charles Hall, who said some 30 percent of the $206.4 million had "clear links" to the corporate sector. Other big judicial campaign money sources were lawyers and lobbyists, who accounted for about 28 percent of the $206 million-plus total.
"Certainly in judicial elections, corporate spending has been one of the big, driving forces," said Hall. A big source of money, he noted, has been third-party groups, including corporations, pouring record sums into independent expenditures.
In the 2008 election cycle, for example, non-candidate independent groups spent some $12.6 million, according to Justice at Stake. That's on top of the $45.6 million that judicial candidates collected.
"The skyrocketing use of these independent campaigns utterly contradicts claims that there hasn't been much corporate spending in these elections," noted Hall.
It's a trend that alarms both judicial reform advocates and judges, including some who served or are serving on the Supreme Court. The problems that big campaign expenditures cause in state judicial elections might soon "get considerably worse," former Supreme Court Justice Sandra Day O'Connor said in a Georgetown University Law Center speech shortly after the high court handed down its Citizens United ruling.
O'Connor cited the danger that a political money "arms race" poses to a fair and independent judiciary. Supreme Court Justice Ruth Bader Ginsburg echoed those sentiments last month, when she told the National Association of Women Judges that the money underwriting judicial elections is one of the American court system's most pressing challenges and that the judicial election system should be changed.
"As bad as I think Citizens United is for the prospects of democratic elections in the United States, I think it's especially troubling for judicial elections," said Richard L. Hasen, a professor at Loyola Law School. Unlike legislators, he added, judges are not elected "to do the bidding of the people.... We expect them to issue rulings of impartial justice, even if that goes against popular beliefs."
In another landmark ruling last year, the Supreme Court in Caperton v. A.T. Massey Coal Co. ruled that a West Virginia Supreme Court judge, Brent Benjamin, should have recused himself from a case involving a top campaign backer, coal company owner Don Blankenship. Blankenship had spent $3 million, mostly independently, to help install Benjamin. (The recent West Virginia mining disaster has thrust Blankenship's company and its campaign donations back in the news.)
In the wake of the Caperton case and other high-dollar judicial elections around the country, several states have taken steps to revise the judicial selection process.
West Virginia, for one, recently enacted legislation to publicly finance the state's 2012 Supreme Court election. The move responded to public perception that judicial campaign spending increases were allowing "outside parties [to] have influence on the judicial process because of their monetary contributions," said West Virginia lawyer Carte P. Goodwin, who sat on a state reform commission, chaired by O'Connor, that recommended the public financing law.
Wisconsin, too, has established new guidelines for how justices should handle cases that involve their campaign donors and is mulling new registration, reporting and disclaimer requirements for groups making independent "issue" expenditures.
The state has outlawed direct corporate campaign spending for more than 100 years, but corporations have gotten around it by spending money on advocacy campaigns that amount to thinly disguised election ads, said Mike McCabe, executive director of the Wisconsin Democracy Campaign.
Total spending on Wisconsin judicial races hit $8.5 million in the 2008 election cycle, according to Justice at Stake, making it one of the most expensive states in which to seek judicial office. McCabe said more than $2 million of that money came from a business-backed group called Wisconsin Manufacturers and Commerce.
With the Citizens United ruling, such corporate expenditures in judicial races in Wisconsin and elsewhere are expected to increase. Over time, the role of corporate political expenditures -- in judicial elections, at least -- may become harder to deny.