In the months before Justice David T. Prosser Jr. and challenger JoAnne Kloppenburg faced off in Wisconsin's Apr. 5 Supreme Court election, unidentified contributors poured $4.4 million into the race—almost six times as much as the candidates spent on the campaign. The outside money came from five nonprofit groups with ties to business, labor, trial lawyers, and Tea Party organizations. Under Wisconsin law, such groups are not required to disclose their contributors. "The candidates have become spectators in their own elections," says Mike McCabe, executive director of the Wisconsin Democracy Campaign, a nonprofit that tracks political donations.
In the 39 states that elect judges, the funding of campaigns for spots on the bench is becoming more opaque. The trend resembles what is going on in federal political races as a result of the January 2010 U.S. Supreme Court ruling in Citizens United v. Federal Elections Commission. That decision, which applies to federal election law, lifted certain restrictions on political spending by corporations and labor unions.
While Citizens United doesn't cover state races, it has helped foster an atmosphere in which outside spending is coloring politics to an even greater extent than in the recent past. Data from New York University's Brennan Center for Justice, a judicial-reform group, shows that the total amount of money flowing into state Supreme Court races doubled in the past decade, to more than $200 million nationwide. Many interest groups "use state party organizations to hide the extent of their financial backing of a candidate," according to a report by the Brennan Center and the Washington-based Justice at Stake Campaign.
Interest groups of all stripes have focused on judicial races as an efficient way to influence governance. State Supreme Courts interpret laws on topics ranging from personal-injury lawsuits to taxation to environmental regulation. "It's a lot cheaper to elect a judge on a Supreme Court than 67 legislators," says Adam Skaggs, a senior counsel at the NYU Brennan Center.
In Wisconsin, the Supreme Court election pitted Prosser, a onetime Republican speaker of the state house, against Kloppenburg, an assistant district attorney who has served under both parties. The candidates spent a combined $757,542 on the race. Wisconsin Manufacturers & Commerce, Citizens for a Strong America, Club for Growth Wisconsin, and the Tea Party Express spent a combined $2.65 million on Prosser's behalf. The Greater Wisconsin Committee spent almost $1.7 million in support of Kloppenburg. According to the Brennan Center, the noncandidate spending for television ads set a state record. The winner, who should be announced later in May following a recount, is expected to participate in a case reviewing a controversial law that would curtail government workers' collective bargaining rights.
In Michigan, a state with a history of heavy spending on Supreme Court races, last year's contest drew $11.7 million in contributions. More than half of that amount came from anonymous donors. In Ohio, which has a similar track record, an independent committee spent almost $1.6 million on behalf of two Republican Supreme Court candidates who were elected in November.
The Partnership for Ohio's Future, a group affiliated with the Ohio Chamber of Commerce, didn't detail its individual donors, according to documents filed with the Ohio secretary of state. Anonymous contributions are legal in both Michigan and Ohio—and that's the problem, says Donald B. Tobin, a professor at the Ohio State University Moritz College of Law who specializes in campaign finance. "Whenever you have a lack of disclosure, you have a feeling of corruption or the feeling that you're not getting a fair day in court."
Alabama led all states in terms of total money spent on Supreme Court campaigns between 2000 and 2009, according to the Brennan Center. The center spotlights one case in which six partners from the Montgomery law firm Beasley Allen gave $606,000 to a Democratic candidate for the Alabama Supreme Court in 2008, funneling 52 checks through political action committees. The money was then transferred to the state Democratic Party, which sent it to candidate Deborah Bell Paseur without disclosing contributors' identities. Paseur lost despite this support.
Shielding the identities of contributors isn't confined to state court races. Monica Youn of the Brennan Center told a U.S. Senate Judiciary Committee panel on Apr. 12 that 35 percent of independent spending in the 2010 federal election cycle "was done in the dark."
The bottom line: Anonymous contributions are flooding elections of state Supreme Court judges, who often have as much policy influence as legislators.