Some look at the skyrocketing cost of judicial elections, which one recent report pegs at more than $200 million over the last decade, and shrug. After all, state and federal races are costing more every year, so why not judicial campaigns?
But several factors set judicial contests apart, and justify mounting concern over their high price tag.
One, the millions flowing into judicial elections are even more secretive and less regulated than federal campaign spending. Two, some judges targeted for ouster this year by big national groups are being penalized for a single vote -- a new trend. Three, as retired Supreme Court Justice Sandra Day O'Connor reminded a Washington audience last week, judges are different.
Some judges are being targeted for a single vote by groups whose funders can be hard to track.
"Many think judges are just politicians in robes," said O'Connor, herself a former lawmaker, at a National Press Club event hosted by Justice at Stake and the Committee for Economic Development. The courts were once the "one safe place in our system of government where being right was more important than being popular," O'Connor said. She added: "This idea is being eroded by increasing threats to judicial independence around the country."
The event spotlighted a major report by Justice at Stake and two other groups that documents $206.9 million in fundraising by state Supreme Court candidates between 2000 and 2009, up from $83.3 million in the previous decade. Non-candidate spending by interest groups and political parties paid for more than half the TV ads in 2008, the report found.
Judicial races have become a high-dollar "duel" between business and conservative groups and trial lawyers and unions, according to the report. But increasingly, nonprofit 501(c) 4 social welfare groups, which are largely free from public reporting rules, are weighing in. Indeed, the "covert spending" that's grabbed headlines in this year's congressional races has long been a hallmark of judicial elections, said Justice at Stake editor Charles Hall.
A Colorado administrative law judge last week ordered an organization calling itself "Clear the Bench Colorado" to register and report as a political committee, following a complaint from an ethics watchdog. Clear the Bench has targeted three state Supreme Court justices for defeat this fall. The group had registered as a ballot initiative "issue committee," but the judge concluded that judges and justices are candidates, and that Clear the Bench must observe the state's $525 campaign contribution limit.
In several states, judges have been singled out by national groups in so-called retention elections, which until now have been largely insulated from the trend toward high-dollar judicial races. Retention elections do not involve multiple candidates, but simply an up-or-down vote, often every six years, on whether an appointed judge should stay or go. Some are being targeted for a single vote by groups whose funders can be hard to track.
In Iowa, conservative groups have spent more than $121,000 on TV ads to bounce three members of the state Supreme Court who took part in a unanimous ruling to legalize same-sex marriage, according to a Justice at Stake analysis of TV spending data. One organizer told the Iowa Independent that the amount is more than $200,000.
News reports link the local group targeting the judges, Iowa for Freedom, to two national organizations -- the American Family Association and the National Organization for Marriage. The American Family Association had a $19 million budget in 2008, and the National Organization for Marriage took in about $3 million that same year, IRS records show.
In Florida, a tea party organization has teamed up with a local group to oust two judges who blocked an amendment opposing President Obama's health care overhaul from being placed on the ballot. In Kansas, abortion opponents have launched a similar campaign to unseat four justices facing retention elections.
"If you start to have national groups or big-money groups specifically gunning for judges on one vote they cast in one case, there's a natural concern," said Hall. "Will judges start looking over their shoulders when they tackle controversial cases?"
Conservatives who endorse judicial elections have lashed back at Justice at Stake, and at reform-minded lawyers who have set out to strengthen recusal and public financing rules at the state level. Indiana lawyer James Bopp Jr., nationally known for his systematic assault on federal campaign finance laws, is among those pushing to protect judicial elections from regulation.
Elections are "the one way that people can hold judges accountable," said Dan Pero, president of American Justice Partnership, a conservative advocacy group that recently released a report accusing liberal financier George Soros of underwriting a $45 million Justice at Stake campaign to roll back judicial elections. Justice at Stake contests that figure.
Pero's own group has spent more than $5 million over the last six years on "education projects" involving the judicial selection process, he said, but he declined to give details. In 2007, the St. Louis Post-Dispatch reported that American Justice Partnership, along with another business-friendly group, had failed to report several hundred thousand dollars in campaign expenditures, an apparent violation of state disclosure laws.
Organizers have said the group follows applicable election laws.
It's the kind of under-the-radar campaign spending that's starting to look like the new "normal" in elections these days. But in ever-more-costly judicial races, it's particularly noticeable -- and troubling.