In the 2019 Wisconsin Supreme Court election, the Republican State Leadership Committee (RSLC), the state campaign arm of the national GOP, dropped more than $1.2 million in last-minute ads to help the conservative candidate eke out a win by less than one percent of the vote.
The last-minute ad barrage looks again to be part of the RSLC’s strategy in the Pennsylvania Supreme Court election on Nov. 2, where Democrat Maria McLaughlin and Republican Kevin Brobson are competing to replace a Republican justice who has reached the mandatory retirement age. Over the past decade, these previously sleepy state supreme court races have become increasingly partisan and expensive, according to data from the Brennan Center for Justice, a nonpartisan law and policy institute that has tracked state judicial elections for more than 20 years.
In Pennsylvania’s Supreme Court race this year, the largest ad buy to date was sponsored by the RSLC two weeks before Election Day, according to a new campaign ad tracker from the Brennan Center and Kantar Media, with an estimated $282,010 in spending behind it.
Of the nearly $940,000 in TV ad spending as of Oct. 27 identified by Kantar, over a third of the amount, more than $322,000, was sponsored by the RSLC—slightly behind the Democratic candidate’s own TV ad spending, and nearly three times the amount spent on TV ads by the Republican candidate so far.
The RSLC ad and one by the Republican candidate Brobson—which was just recently revised, after the state bar association found it violated their standards against ads that omit or obscure information necessary to prevent misinterpretation—play up grisly themes in ways that the Brennan Center watchdogs say are misleading about the judicial process.
“These ads are really damaging to the justice system,” said Douglas Keith, counsel in the Brennan Center’s Democracy Program. “There is lots of research showing that ads atacking judges for decisions in criminal cases make judges rule more harshly in unrelated cases, issue longer sentences, and be more likely to uphold death penalty, making it such that someone’s freedom is being determined in part by whether it’s an election year.”
Since the U.S. Supreme Court’s 2010 decision in Citizens United, outside groups have sprung up to spend large sums on state judicial elections, some of which are funded by organizations that don’t reveal their donors. In 2018, the RSLC’s top two contributors according to records maintained by OpenSecrets were the dark money groups the Judicial Crisis Network and the Chamber of Commerce, followed by large donations from tobacco corporation Altria Group, the companies of Republican megadonors Sheldon and Miriam Adelson, pharmaceutical industry trade group PhRMA, and conglomerate Koch Industries.
In the first half of 2021, the RSLC received donations of $500,000 from Republican and Biden inauguration megadonor Kenneth Griffin, the founder and CEO of investment firm Citadel, and $200,000 from Koch Industries, according to Sludge’s review of IRS disclosures. Marathon Oil Company has given $200,000 to RSLC this year, and tobacco company Reynolds American has given $250,000, one of a number of companies that has contributed around $200,000 so far to the Republican 527 group. The Judicial Crisis Network and the Chamber of Commerce did not donate to the group in the first half the year.
In 2020, RSLC received a total of $300,000 from electric company NextEra Energy, over $125,000 from Alliant Energy, $35,000 from TC Energy, and $50,000 from oil company WPX Energy. Novartis Pharmaceuticals donated a total of $60,000 to RSLC last year, with drugmakers Takeda, Alexion, and Vertex each giving at least $50,000. Reynolds American donated $240,000 to RSLC in 2020, and Altria Client Services gave $310,000 last year. The RSLC transferred over a million dollars last year to its Judicial Fairness Initiative affiliate, which sponsors its judicial race ads.
In all outside spending in the race, the Pennsylvania Chamber of Business and Industry has spent nearly $295,000 supporting Brobson, and the RSLC’s Judicial Fairness Initiative has spent a total of $236,000 supporting the Republican. The Pennsylvania Coalition for Civil Justice Reform, a coalition of businesses, trade associations, and health care providers, has spent $120,000, some of it reported as supporting Brobson. McLaughlin has benefited from more than $50,000 in ad spending by For Our Future, a liberal group that in the 2020 election cycle received millions of dollars from the dark money nonprofit America Votes.
“Previously these outside groups never accounted for more than about 15% in a state supreme court election cycle, but ever since Citizens United they’ve accounted for well over a quarter of all the money in these races, as much as 40% at the high water mark, and they’re maintaining their new elevated role,” Keith said. “We should expect they will continue to play a major role in state supreme court elections across the country.”
Democrats currently hold five of seven seats on Pennsylvania’s top court. The nonpartisan news collaborative SpotlightPA reports that justices could see cases involving the state’s congressional and state legislative maps, as well as contentious issues of school district funding.
McLaughlin has raised nearly $2.6 million this year in contributions and in-kind donations combined, according to state campaign finance records, and Republican Kevin Brobson has brought in almost $1.3 million in the same. The Commonwealth Leaders Fund has given nearly $600,000 to Brobson’s campaign as of Sept. 13, the end date for the pre-election report. Democrat McLaughlin has received $850,000 from the Committee For A Better Tomorrow, which is funded by the Philadelphia Trial Lawyers Association. Pennsylvania has no limit on campaign contributions and elects its Supreme Court judges in partisan races, giving wealthy donors an opportunity to sway the outcome, and some individual donors have contributed between $10,000 and $25,000 in the race.
“The RSLC has asserted itself as the major player in state supreme court elections over the past few years, every cycle active in multiple states, and they do so in ways that obscure from voters any understanding where the money is coming from,” said Keith. “It’s very likely they’re merely serving as a conduit for state specific judicial interests seeking to influence, but who don’t want to be found out—they’ve become experts at getting involved and honing their tactics.”
Of the nationwide trend of increased spending on TV ads in state judicial races, Keith said the outside groups effectively allow donors to evade campaign finance limits. “A donor might only be able to give $2,000 to a judge, but they can then turn around and give $200,000 to an outside group they know will support that same judge,” Keith said. “A case might involve a judge who had six or seven figures in spending support, even when state law restricts donors from giving more than a few thousand dollars.”
Judicial elections carry unique conflict-of-interest concerns, and some states including California have passed disclosure laws that help voters trace back the original source of funding behind contentious ads whose true financiers would otherwise remain undisclosed. “Disclosure requirements could involve disclosure of donors for any spending to support a candidate, not just ads that say ‘vote for’ or ‘against,’” Keith said. “You can ensure that any groups spending are required to report multiple layers of donors, so they can’t just support benignly named subgroups that don’t actually give voters any info about who’s giving in their elections.”
In addition to state legislatures, there’s room for courts themselves to adopt stronger disclosure rules, Keith said. “When appearing before courts, corporate disclosures are often required where they file a statement on parent entities, so a judge has an easier job determining conflicts of interest. You could require any party appearing before court to disclose, ‘Here is all the money I’ve spent in judicial elections in the state over five or six years,’ which would allow not just a judge but also the opposing party to be aware of conflict of interest.”
