Dark Money Groups Are “The Crocodile in the Bathtub” of Judicial Elections, Fair Courts

March 29, 2021

When Deep Throat told Bob Woodward to “Just follow the money” in the 1976 movie All the President’s Men as the surest path to uncovering corruption at the White House, he could just as well have been talking about state supreme court elections.

More than a half-billion dollars has been spent over the past 20 years by groups hell-bent on electing or defeating judges that impact their narrow special interests. Thanks to loopholes in state and federal laws – and more recently the cloak of secrecy provided by the U.S. Supreme Court’s Citizens United decision – it is difficult if not impossible for the public to “follow the money” and uncover the funders trying to influence future court decisions.

This is a BIG problem, folks. As pointed out by the nonpartisan Brennan Center for Justice, the leading watchdog in the fight to expose the big spenders in judicial elections, “state supreme courts sit atop judicial systems that hear 95% of all cases filed in the United States.” In just the past few years, state supreme courts had the final word on several major issues, including immigration, the death penalty, sex discrimination, reproductive rights, partisan gerrymandering, and the integrity of our elections.

These decisions affect the rights of workers, access to health care, and product liability. That’s why these powerful interests want to get involved – they have a lot at stake. Spending relatively small amounts of money to change the outcome of a judicial race is a good investment when a single vote can change a major ruling, potentially adding millions or billions to a company’s bottom line. That’s why the U.S. Supreme Court ruled that campaign contributions in a state supreme court race, particularly big spending by a single corporate interest, can violate due process rights.

And while most Americans won’t notice, it would be naive to think those spending millions of dollars on state judicial campaigns and retention elections are not succeeding in their dark-money mission to influence our courts – “institutions that are constitutionally obligated to provide equal justice regardless of wealth, status, or political connections,” states the Brennan Center.

The Judicial Crisis Network, A Funder Case History

Let’s take a look at how this works (or more aptly, doesn’t work) for justice in America. In 2017-18, a group created by the Republican State Leadership Committee (RSLC) called the Judicial Fairness Initiative (JFI) topped all spenders in state judicial races, plunking down $4.1 million to sway supreme court elections in three states. This is a tiny fraction of the RSLC’s total campaign giving, but it can have a huge impact in a state supreme court election.

The conservative Judicial Crisis Network (JCN) funded the RSLC’s 2017-18 influence campaign with a $3.6 million contribution. JCN also gave $255,000 to the Wisconsin Alliance for Reform, a group that supported a Wisconsin Supreme Court candidate with television and radio ads. And JCN spent $500,000 directly to unseat an Arkansas Supreme Court justice.

Thanks to the Brennan Center’s biannual Politics in Judicial Elections series, we know where all this JCN money was spent but we have no idea where it originated. Like eight of the top 10 interest group spenders tracked during the 2017-18 election cycle, JCN does not disclose its donors. According to a 2018 tax filing, JCN received $17 million from “Donor A,” likely the Wellspring Committee, a group notorious for networking millions from deep-pocket donors and other dark money groups into judicial races.

The Crocodile in the Bathtub

Most of the millions flowing into judicial races are spent on the favorite tool for character assassination in political campaigns, extremely negative and twisted advertising. Often these ads are designed to create fear among voters by pillorying judges for a decision in a criminal case, especially those involving violence against children. Crime, however, is rarely the motivating issue for the national funding groups or the state-based special interest groups they support, the Foot Soldiers. Scratch the surface and you’ll often find well-funded business interests and ideological groups that work together to exert influence and sway state judiciaries toward their preferred outcomes.

These attack-dog tactics intimidate sitting judges to the point that it can impact their decisions, especially in criminal cases. Brennan Center researchers cite studies that show judges issued longer sentences and were less likely to rule in favor of criminal defendants as elections heat up. California Supreme Court Justice Otto Kaus described looming elections as “a crocodile in your bathtub. You keep wondering whether you’re letting yourself be influenced, and you do not know.”

Iowa’s merit-based system for nominating candidates to our state courts helps insulate us from the worst effects of this flood of special interest influence common to judicial campaigns, but our retention elections are still vulnerable to dark money agendas. We learned this the hard way in 2010 when extreme-right religious groups successfully ousted three accomplished Supreme Court justices under the false flag “Iowans for Freedom.” Led by Bob Vander Plaats, President of The Family Leader, the group raised and spent nearly a million dollars on deceptive advertising, most of it money from groups outside of Iowa.

This is why our work is so important. Iowans must remain vigilant to guarantee equal justice as our current campaign finance systems are not sufficient. Across the country, big money interests have been able to tilt justice in their own favor. And it can happen again here, too. Our best line of defense against this manipulation by the foot soldiers and their funders is to support the watchdogs that are fighting to maintain fair and impartial courts. Next time, we will take a look at the heroes in our Justice at Stake series, the intellectuals, the detectives, and the citizens’ brigade.

Yours for Fair Courts,
Justice Not Politics