Five years after the Supreme Court opened the floodgates of campaign spending with its Citizens United decision, top newspapers in the three states with the most expensive judicial campaigns, Ohio, Alabama, and Texas, have largely failed to connect Citizens United with major changes in these races. The influx of money into state judicial elections following the decision has accelerated negative advertisements and campaign financing that may influence judges' decisions.
Newspapers In States With Expensive Judicial Campaigns Did Not Report Citizens United's Influence
Alabama, Texas, And Ohio Have Seen Tens Of Millions Contributed To Judicial Elections. Since 2000, three states lead the country in judicial campaign contributions: Alabama ($69 million), Texas ($64 million), and Ohio ($49 million). [National Institute on Money in State Politics, accessed 1/21/15; accessed 1/21/15; accessed 1/21/15; accessed 1/21/15]
Major Newspapers In These States Have Failed To Mention Citizens United While Reporting On Judicial Elections. According to a study conducted by Media Matters, The Dallas Morning News, The Birmingham News, and the Cleveland Plain Dealer have not published a single news story reporting on the effect Citizens United has had on judicial elections since the case was decided in 2010.
Outside Spending By Super PACs And Trade Groups Went Underreported In Judicial Election Stories. Reports from these papers on judicial elections and campaign fundraising have largely ignored spending by outside groups such as super PACs, unions, and trade groups. The Birmingham News reported on outside spending in stories mentioning judicial elections 44 percent of the time, while The Dallas Morning News and Plain Dealer reported on outside spending only 5 percent and 17 percent of the time, respectively.
Citizens United Changed Judicial Elections By Opening The Floodgates To Outside Campaign Spending
Businessweek: Citizens United Ruling Contributed To Growth Of Judicial Campaign Contributions. As Bloomberg Businessweek reported, the Citizens United decision increased campaign contributions in both national and state elections:
Spending on judicial races has been ticking up along with overall election spending for the past decade, but the U.S. Supreme Court's 2010 Citizens United ruling, which lifted restrictions on political spending by groups unaffiliated with individual campaigns, has driven money into races once run on shoestring budgets. “After the Citizens United ruling, the focus on outside spending was of course on federal races,” says Denise Roth Barber, the managing director of the nonpartisan National Institute on Money in State Politics. “But then everybody figured out that they could do the same thing at the state races.”
For donors, smaller races offer distinct advantages over presidential or congressional elections. It's relatively inexpensive to influence the outcome, and voters tend to have less-fixed opinions of municipal or state officials. Judges are particularly attractive targets, because they have authority to rule on ideological issues such as abortion or to set precedents on business regulations. [Bloomberg Businessweek, 7/31/14]
Brennan Center: Non-Candidate Spending Increased In Judicial Elections Following Citizens United. According to a report on the Citizens United decision's effect on judicial elections produced by the Brennan Center for Justice, non-candidate spending in the 2011-2012 election cycle increased to an “unprecedented $24.1 million on state court races in 2011-12 -- an increase of over $11 million since 2007-08.”
[Brennan Center for Justice, 10/23/13]
American Constitution Society: Non-Candidate Spending On Campaign Ads Is More Likely to Be Negative. In a report for the American Constitution Society, two Emory University law professors found that ads run by outside groups or special interests are more likely to be negative compared with ads run by political parties or candidates (click to enlarge):
The flood of independent expenditures after Citizens United has not merely made judicial elections more expensive. It has transformed how they are conducted (largely via TV ads), altered their tone (by making harsh attacks much more common) and changed the substance of the issues addressed (criminal justice issues, often in the form of “soft on crime” attacks, are now commonplace). In 2012, an estimated $33.7 million dollars was spent on TV ads in state supreme court elections, with unprecedented levels of independent expenditures and electioneering by outside groups in particular. As is often the case, outside groups delivered messages via these ads that were more harshly negative than those put forth by the candidates and their campaigns. Forty-four percent of the ads sponsored by outside groups were attack ads. In contrast, only 2 percent of candidate ads and 11 percent of party-sponsored ads were negative in tone.
[American Constitution Society, 10/21/14]
Negative Ads Fueled By Higher Campaign Spending Are Correlated With Skewed Judicial Rulings
American Constitution Society: Justices Who Face Negative Ad Campaigns Are Less Likely To Decide In Favor Of The Defendant. According to the report for the American Constitution Society, the increase in negative ads fueled by outside money allowed by Citizens United has produced a measurable change in judicial rulings:
The analysis also explores whether the U.S. Supreme Court's decision in Citizens United had any impact on justices' votes in criminal appeals. The Court's decision immediately was followed by a dramatic increase in both the actual number of TV ads aired during judicial elections and the threat of future TV ads. However, Citizens United changed campaign finance most significantly in the 23 states that had bans on corporate or union independent expenditures prior to the ruling; 27 states had no such ban and thus were not as affected by the Citizens United decision. The analysis empirically exploits this variation across states and the resulting differential effect of the decision to isolate the impact of corporate and union independent expenditures in judicial elections on justices' votes in criminal appeals.
The results from this analysis indicate that unlimited corporate and union independent expenditures are associated with a decrease in justices voting in favor of defendants. The results are statistically significant across different specifications and with different control variables. Unlimited independent spending is associated with, on average, a seven percent decrease in justices' voting in favor of criminal defendants. That is, the results predict that, after Citizens United, justices would vote differently and against criminal defendants in 7 out of 100 cases. [American Constitution Society, 10/21/14]
Criminal Justice Experts: Evidence Suggests Judges Facing Re-Election Hand Down Longer Sentences. In an analysis published in the journal The Review of Economics and Statistics, criminal justice experts Carlos Berdejo of Loyola Law School and Noam Yuchtman of the University of California-Berkeley concluded that judges who will soon face re-election hand down sentences 10 percent longer than judges who were just elected:
We present evidence that Washington State judges respond to political pressure by sentencing serious crimes more severely. Sentences are around 10% longer at the end of a judge's political cycle than at the beginning; judges' discretionary departures above the sentencing guidelines range increase by 50% across the electoral cycle, accounting for much of the greater severity. [Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing, April 2012]
Scholars Of Law, Economics, And Politics: “Empirical Evidence Shows” A Disturbing Connection Between Judicial Campaign Contributions And Subsequent Decisions. An interdisciplinary group of professors presented the Supreme Court with an overview of their research that demonstrates election fundraising “can affect judicial decision-making and case outcomes.” Although the correlation does not definitely establish causality, their analyses reveal that “donors not only intend to influence judges, but may also experience success in doing so”:
[S]tudies have shown that campaign contributions from business interests, lawyers, and lobbyists can be correlated with favorable decisions in cases before recipient judges. For example, a comprehensive national study of 175,000 campaign contribution records and 2,345 state supreme court opinions -- each related to business interests and published between 2010 and 2012 -- concluded that elected state supreme court justices receiving at least 25 percent of their campaign contributions from business interests voted in favor of business interests in just over 62 percent of cases, whereas elected state supreme court justices receiving no more than 1 percent of their campaign contributions from the business sector voted in favor of business interests in only 46 percent of cases. Because approximately one third of cases before state supreme courts involve business litigants, there is much at stake.
Other studies corroborate the connection between campaign contributions and judicial decision-making. One nationwide study of 21,000 state supreme court decisions published between 1995 and 1998 found that campaign contributions from business groups, labor groups, medical groups, and attorney groups were associated with favorable votes in relevant cases before partisan-elected recipient judges. Studies have also identified a relationship between campaign contributions and voting patterns in labor and arbitration cases. Finally, several researchers have verified empirically that campaign contributions from pro-plaintiff donors can affect judicial behavior.
In fact, empirical analysis demonstrates that contributions to judges who are not likely to share the contributor's view of the law have a much stronger association with subsequent voting patterns than do contributions to more like-minded judges. Empirical analysis also shows that the correlation between campaign contributions and voting patterns tends to disappear when judges face mandatory retirement. These findings suggest that the effect of campaign contributions on judicial decision-making cannot be attributed entirely to donor support for candidates with sympathetic judicial ideologies. [Brief Of Professors Of Law, Economics, And Political Science As Amici Curiae In Support of Respondent, AmericanBar.org, 12/23/14 via Media Matters, 1/14/15]
Media Matters searched the Nexis database for the largest newspaper in each selected state -- the Cleveland Plain Dealer, The Birmingham News, and The Dallas Morning News -- for news articles containing the term "(judicial or judge!) and (mccutcheon or citizens united or campaign finance)" from January 21, 2010, the day the Supreme Court decided the Citizens United case, through January 21, 2015, the five-year anniversary of the ruling.