Every eight years, Tennessee’s state judges go before voters and ask to keep their jobs. Based on a system adopted in Missouri decades ago, Tennessee’s approach was designed to limit partisanship in the judiciary by letting the people ratify appointments made by the state’s governor. Usually, these elections are sleepy affairs. Not this year.
In the weeks leading up to the Aug. 7 election, outside groups known for spending to influence presidential and congressional elections have been buying television and radio ads targeting three state supreme court justices. The state chapter of Americans for Prosperity, the conservative group backed by the billionaire brothers Charles and David Koch, announced on July 22 that it was “launching a major new effort to educate the public on the liberal records” of the three justices, all Democratic appointees, using radio ads and direct mail. The State Government Leadership Foundation, a national group affiliated with the Republican State Leadership Committee, has singled out Chief Justice Gary Wade, branding him “liberal on crime, liberal on the Obama agenda.” A group supporting Wade and his fellow justices, Sharon Lee and Cornelia Clark, has replied with ads reminding voters the bench “affirmed 90 percent of death sentences.” Longtime observers have been taken aback. “This is a first for our state,” says Tennessee’s former Chief Justice William Barker, a Republican who recorded a TV ad supporting the justices.
Spending on judicial races has been ticking up along with overall election spending for the past decade, but the U.S. Supreme Court’s 2010 Citizens United ruling, which lifted restrictions on political spending by groups unaffiliated with individual campaigns, has driven money into races once run on shoestring budgets. “After the Citizens United ruling, the focus on outside spending was of course on federal races,” says Denise Roth Barber, the managing director of the nonpartisan National Institute on Money in State Politics. “But then everybody figured out that they could do the same thing at the state races.”
For donors, smaller races offer distinct advantages over presidential or congressional elections. It’s relatively inexpensive to influence the outcome, and voters tend to have less-fixed opinions of municipal or state officials. Judges are particularly attractive targets, because they have authority to rule on ideological issues such as abortion or to set precedents on business regulations. In Tennessee, justices also have the power to appoint the state’s attorney general. “If the system is set up that an official of some kind is elected, then don’t you think it’s fair that they should be held accountable to the electorate?” says Levi Russell, a spokesman for Americans for Prosperity.
Thirty-eight states put their high-court justices on the ballot. In the 2012 election, outside groups spent $15.4 million on state supreme court races—but that was with a presidential election driving ad rates up. This year the national total will likely be lower; spending in several states, however, is expected to hit new highs.
This spring, two conservative outside groups—Justice for All North Carolina, which reported receiving $900,000 from the national Republican State Leadership Committee, and North Carolina Chamber IE, an independent expenditure group, which reported a $50,000 donation from Koch Industries—spent more than $800,000 on TV ads in a North Carolina Supreme Court primary. That was 70 percent of the total ad buy in the race, according to New York University’s Brennan Center for Justice. The groups unsuccessfully tried to prevent incumbent Justice Robin Hudson, a registered Democrat, from making it to the November ballot. In Arkansas, the Law Enforcement Alliance of America, a gun-rights group linked to the National Rifle Association, spent more than $319,000 on TV ads to defeat a Little Rock appellate lawyer running for a vacant seat—almost double the amount spent by campaigns and outside groups together in 2012.
In Tennessee, outside groups had spent more than $268,000 on television ads alone as of late July. The three justices on the ballot were each appointed by former Governor Phil Bredesen, a Democrat, before he left office in 2011. Voters are being asked to choose whether to retain them or to allow Bredesen’s Republican successor, Governor Bill Haslam, to appoint replacements. “We’ve flipped from being obviously a very Democratic state to a very Republican state, and it is a matter of reflecting those values,” says Susan Kaestner, president of the Tennessee Forum, a conservative-leaning group, which bought more than 90 percent of the outside TV ads in the race, according to filings with the Federal Communications Commission.
Haslam has kept his distance, but the effort to oust the three justices has been championed by his lieutenant governor, Ron Ramsey. Earlier this year, Ramsey’s office created a PowerPoint presentation that was designed to encourage business leaders “not to sit on the sidelines” in the coming election, he told a local TV reporter, Phil Williams. The document paints the justices as “soft on crime” and suggests they’re too hard on business because of rulings in a variety of liability and malpractice cases.
Another focus of the case against the justices is on their role in appointing Bob Cooper, Tennessee’s current attorney general, who has been targeted by conservatives for declining to join a multistate challenge to the Affordable Care Act in 2010. When Williams, the reporter, asked Ramsey about the prospect of big business “trying to buy” the state’s supreme court, he replied, “I don’t want them to buy it, but I want them to be involved.” He added that the judicial election could provide national groups such as the Republican Attorneys General Association with the opportunity to get a “pro-business” candidate “in a relatively cheap way.”
Chief Justice Wade says he has learned from the experience of the three Iowa Supreme Court justices who “basically stayed out of the fray” when conservatives targeted them in 2010 for their ruling to legalize same-sex marriage. All were defeated at the polls. In contrast, Wade has been traveling the state to speak at fundraisers, meet with lawyers and law enforcement, and campaign at local courthouses and Kiwanis Clubs. He devotes much of his pitch to the record he and his colleagues have built on capital punishment. “During our tenure in service there have been four executions during the last eight years, whereas in the 46 years prior to that there were two executions,” he says. Asked if he finds it problematic to be on the campaign trail talking up his record on executions, Wade laughs. “Well,” he says, “it’s not exactly how I intended to spend my summer vacation.”