WASHINGTON -- On February 15, Wisconsin voters went to the polls to vote on a rather mundane state Supreme Court primary election. The incumbent, David Prosser, had been appointed by then Gov. Tommy Thompson in the 1990s and won his first 10-year term in 2001. Up until that day, there was little expectation that this judicial election would turn into anything more than a mildly contested, little-watched race.
On that same day, protestors began an effort to oppose the budget bill proposed by the newly-elected Republican Gov. Scott Walker. Four days earlier, the governor outlined a bill that would severely curtail collective bargaining rights for public employees, a move that soon inspired a massive grassroots movement that lead activists to occupy the statehouse in weeks long protest actions. It also soon turned the once-sleepy Supreme Court race into a referendum, fueled by independent group money, on the Gov. Walker.
"In a matter of a few weeks we went from an election that probably would have had trouble reaching $1 million to one where over $5 million was spent," said Michael McCabe, director to the Wisconsin Democracy Campaign.
The supposedly nonpartisan race turned heavily political as union groups poured money into advertisements against Prosser and spots for his opponent, Jo Anne Kloppenberg. National conservative groups, like the Club for Growth, returned fire against Kloppenberg. By the end -- a photo finish win for Prosser -- 35 outside groups wound up spending $4.5 million. The candidates themselves spent only $900,000.
The takeover of the Wisconsin Supreme Court race by outside interest groups is only part of a growing trend in judicial elections across the country, a trend that is increasing in the wake of the Supreme Court's Citizens United v. Federal Election Commission decision.
Spending on state Supreme Court elections by candidates and special interest groups in the 2009-10 elections reached $38.4 million, according to a report released Wednesday by the Brennan Center for Justice, Justice At Stake and the National Institute of Money In State Politics. While this total was lower than the $42.7 million spent in the 2005-06 election, it included a major jump in outside group spending.
Outside groups accounted for nearly a third of all spending, or $11.5 million, in state Supreme Court elections, up from less than one fifth of all spending in 2005-06. Nearly 40 percent of that spending has been monopolized by a group of 10 super spenders.
"What we're seeing in the continuation of what we've seen over the past 10 years [in judicial elections] is what the people are really starting to see at the national level with the super PACs," said Justice At Stake Communications Director Charlie Hall. "A small group of interest groups are starting to take over Supreme Court elections in America."
The 2009-10 judicial elections also saw a change in the partisan split on spending. Unlike previous years, where Democratic and Republican groups were practically even in spending on judicial elections, pro-Republican groups dominated judicial spending in the last election cycle.
The judicial elections of 2009-10 do, in fact, boast many of the same traits that are beginning to explode onto the national stage. Secretive spending, nationalized local election, and the drowning out of candidate voices are all concerns that have been increasing as judicial election spending has exploded over the past decade. All of this presents a problem for the credibility of the courts, according to local state campaign finance watchdogs and the authors of Wednesday's report.
The national Supreme Court, in the case Caperton v. Massey, ruled that independent expenditures on behalf of a state Supreme Court justice can create a credibility problem and can require the justices to recuse themselves from cases where the independent spender's interests are at stake. (This is in direct contradiction to the Court's ruling in Citizens United that independent expenditures cannot give rise to an appearance of corruption.)
"Outside groups and special interests continue to play a leading role in choosing who sits on the bench, and the concern is that they don't do so out of a philanthropic purpose," said the Brennan Center's Adam Skaggs. "They are doing so because they want an influence on who sits on the bench."
"Judicial politics has become every bit as polarized and every bit as divisive as legislative politics," Wisconsin Democracy Campaign's McCabe said. "They have to court every group that has an agenda."
In 2010, Michigan saw highest amount of total spending and outside group spending on state Supreme Court elections in any state. In the two elections held in 2010, outside groups spent nearly $7 million; total spending was $9.2 million. Practically all of the outside group spending went undisclosed.
"Michigan is sort of a poster child for what's wrong with judicial elections," Skaggs said. "Because of loopholes in the disclosure rules we don't know where the money is coming from. That is the same as what we've been seeing in the rise of super PACs on the national level."
Laws in Michigan allow outside groups to avoid disclosure when they run ads that do not call for the direct election or defeat of a candidate. These ads, despite not calling for the election or defeat of candidates, are regularly related to personal attacks and not precise issues, other than the general issue of criminal justice.
One ad by the Law Enforcement Alliance of America, an NRA-linked group based out of Virginia, labeled the Michigan Supreme Court justice soft on crime for "rappers, lawyers and child pornographers." The LEAA did not disclose the source of their contributions or file disclosures for the advertisements.
The biggest spender in the Michigan races was a state-based committee of the Republican Governors Association. This came as a surprise because the Michigan Chamber of Commerce has long been the biggest spender in these election.
Contribution numbers suggest the local Chamber may very well have paid for them, though through a complicated shell game aimed at hiding the source of the advertisements, according to the Michigan Campaign Finance Network. The Michigan Chamber of Commerce gave the RGA $5.4 million in 2010. The RGA then donated $8.4 million to their Michigan affiliate, which in turn sent $3 million directly to the reelection of Texas Gov. Rick Perry. That left the Michigan affiliate with the exact amount that the Michigan Chamber initially sent to the RGA.
Michigan Campaign Finance Network director Rich Robinson said he thinks this maneuver "was a way to get the Michigan donor's fingerprints off of the money. This is just one big shell game to try to lose the bread crumbs through the forest."
Wisconsin saw a similar problem emerge, as their disclosure laws have been made largely irrelevant after the Citizens United decision.
"Our disclosure laws were not designed to contemplate the spending of money from the general treasuries of incorporated entities," McCabe said. "Now there are ways for these groups to bring in money and conceal the origins of that money from public view. It's much more difficult to trace that money to its true origins."
In Iowa the trend of secret spending by outside groups met up with a new development that could continue into future judicial elections. Three state Supreme Court justices were ousted by a coordinated campaign by out-of-state groups angry at the justices' votes to approve same sex marriage in the state. These justices were not involved in competitive elections. Instead they were running in retention elections, single candidate elections designed to reduce the partisanship of the judiciary where the public votes to retain or depose the sitting justice.
"Retention elections are unique to the judicial arena," Justice at Stake's Hall said. "Most of the states that appoint judges have a system of retention elections where only the incumbent goes on the ballot. More money was spent on [Iowa elections] than in the entire previous decade [on retention elections]."
The out-of-state groups, including National Organization for Marriage, the American Family Association, the Family Research Council, the Campaign for Working Families and Citizens United wound up spending $900,000 in Iowa. The campaign was run by the former Iowa gubernatorial candidate and social conservative figure Bob Vander Plaats and was aided by national trends and figures.
Much of the seed money for the campaign was secured by Republican presidential candidate Newt Gingrich. The campaign also drew the attention of Rep. Michele Bachmann (R-Minn.), another Republican presidential candidate who praised the success of the effort in a May 2011 visit to Iowa. Bachmann referred to the ousted judges as "black-robed masters."
The spending in judicial elections is likely to continue its decade-long rise. After the 2010 elections, state legislatures sought to repeal public financing statutes for judicial races in the states that have them, change retention elections to competitive races and end merit selection of justices.
"It's not just heavy spending going on in these races, but another series of legislative attacks, in part as tools to mobilize the base, particularly on the right," the Brennan Center's Skaggs said. "Attacks on the court are perceived by candidates as a winning issue to gin up energy among the base."
CORRECTION: An earlier version of this report misstated the date of Wisconsin's state Supreme Court primary election. It was on February 15, not February 5.