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How judicial campaign ads might be affecting legal decisions

WASHINGTON – The influx of money into state judicial elections may be bad news for those accused of crimes.

A new study, sponsored by the American Constitution Society for Law and Policy, finds that the more ads aired during state supreme court campaigns, the more likely justices are to rule against criminal defendants – potentially from fear of appearing “soft on crime.” That finding is the result of an analysis of 3,000 state supreme court criminal appeals from 2008 to 2013 and is the latest in a string of recent research that suggests increased campaign spending, by pro-business groups in many cases may be distorting judicial rulings.

“It’s obviously paying off,” says Dr. Joanna Shepherd, an Emory Law School professor and economist who wrote the report, “Skewed Justice,” with fellow professor Michael Kang. The two examined ruling data involving 470 justices in 32 states and compared it to data on ads aired over the same time period, collected by the Brennan Center for Justice, a nonpartisan public policy and law institute at the New York University Law School.

From that research and a subsequent analysis, they concluded that favorable rulings for criminal defendants declined both as the number of campaign ads increased and in the wake of the Supreme Court’s 2010 Citizens United ruling. The report also shows that outside spending in judicial races has been on the rise in recent years and such groups tend to buy more attack ads than candidates or parties. More money and more attack ads have flowed in as justices have veered increasingly in their rulings against those accused of crimes.

This year alone, TV ad spending in Michigan and North Carolina has surpassed $1 million. More than $1.4 million was spent in the retention campaign for three Tennessee Supreme Court justices this summer; all three held onto their seats. In that election, the largest share of spending against them came from a committee formed by the state’s Republican Lt. Gov. Ron Ramsey who said in a Facebook post after the election that it represented a victory for the people of Tennessee because, “For the first time in decades, we had a real election for the Supreme Court.”

Those three states are just the latest in a trend of states with high-cost campaigns – which, Shepherd and Kang’s findings suggest, come at a price for defendants. Doubling the number of campaign ads was associated with a sizable decline in favorable rulings for criminal defendants. Doubling ads aired from 2,000 to 4,000 was associated with a 2 percent decline in rulings in favor of criminal defendants, they found. But doubling the number of airings from 10,000 to 20,000 was associated with a decline in favorable rulings of between 7 and 8 percent.

Until about a quarter-century ago, judicial elections were relatively low-profile affairs. But starting in the early 1990s, those campaigns became increasingly contentious and costly. By the 2007 to 2008 cycle, state supreme court candidates raised more than $45 million – 7.5 times what they raised in the 1989 to 1990 cycle. One reason for that has been an increase in outside spending, spurred even more by Citizens United, they write. At the beginning of the 2000s, noncandidate spending accounted for less than 10 percent of total spending. By the 2011 to 2012 cycle, it was above 40 percent.

And that outside spending may also be changing the character of such campaigns.

“The flood of independent expenditures after Citizens United has not merely made judicial elections more expensive,” the authors write. “It has transformed how they are conducted (largely via TV ads), altered their tone (by making harsh attacks much more common) and changed the substance of the issues addressed.”