TV Spending Rises In Judicial Races

Television advertising meant to sway the outcome of judicial elections surged during the 2012 election cycle, a national report released Friday says, as special-interest groups tried to capitalize on new rules that allowed unlimited spending.

TV spending on races for state Supreme Courts and other high courts jumped to $33.7 million in 2011 and 2012, an increase of more than $7 million from four years earlier, and more than a quarter of all spending came from organizations such as the National Rifle Association, Americans for Prosperity and America Votes.

Negative advertising aired in 10 states, including some spots that were misleading, according to researchers at New York University School of Law and the National Institute on Money in State Politics.

Their report, “The New Politics of Judicial Elections,” comes as Tennesseans prepare for a vote next year that could reopen the possibility of contested elections for Supreme Court and appeals court judges.

The report finds that $56.4 million was spent on high-court judicial races in the 2012 cycle, slightly less than the $57.1 million spent in the 2008 election cycle. Spending topped $1 million in 12 states, led by Michigan, where $13 million was spent.

Researchers said special interest groups took advantage of the U.S. Supreme Court’s 2010 ruling in the Citizens United case, which allowed independent groups to spend on behalf of candidates, provided they did so without coordinating with campaigns. Such organizations spent $15.4 million, accounting for 27 percent of all high-court spending.

“Special-interest spending in judicial elections has turned into an arms race,” said Alicia Bannon, counsel for the Democracy Program in NYU’s Brennan Center for Justice and the report’s lead author. “The American people need to know that judges are deciding cases based on the law, not on who spent the most money to support their campaign.”

Voters in Tennessee choose lower court judges, but the state has not held direct elections for the state Supreme Court since 1990 and for lower courts since 1971. These judges instead are chosen by the governor and stand in “retention elections,” yes-or-no votes held every eight years to determine whether they should be allowed to remain in office.

Critics of the system say retention elections violate the state constitution, which requires that Supreme Court justices “shall be elected by the qualified voters of the State” and that lower court judges must be elected by voters in their districts.

Voters will decide in 2014 on an amendment to the Tennessee constitution that would grant the governor explicit power to appoint judges and would give state lawmakers the power to review his choices.

If that amendment fails, it could strengthen legal challenges to the state’s judicial selection process.

But even one of the state’s most prominent supporters of contested judicial elections, former gubernatorial candidate John Jay Hooker, says he would not favor free spending on court races.

“All campaign contributions are potential bribes and therefore should be eliminated,” said Hooker, who has filed several lawsuits against the state’s system.

The Brennan Center argues that public financing for elections, as well as systems like Tennessee’s that are intended to select judges based on their merits, can help states resist the politicization of judicial elections.

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