SuperPacs and 501c4s are some of the biggest spenders on political advertising for would-be legislators, mayors and governors. But state judges also are on the campaign finance gravy train, often as the subject of attack ads labeling them "soft on crime." According to new research, it turns out those ads influence the way judges make decisions in the courtroom. Bob talks with Emory University Law professor Joanna Shepherd, co-author of the study Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases.
BOB: November 4th, is midterm election day. Like you care. A recent Pew Poll found that just 15 percent of Americans say they’re following the midterm elections very closely. It is, however, slated to be the most expensive midterm ever, costing a projected 4 billion dollars, much of it on TV advertising. SuperPacs and 501c4s are some of the biggest spenders on political ads, boosting or smearing would-be legislators, mayors and governors. But judges are also on the campaign finance gravy train. 90 percent of state judges must face voters at some point, and Emory University Law Professor Joanna Shepherd says the cash flowing to influence the election of state jurists has soared, especially since the 2010 Citizens United ruling opened the floodgates on independent political expenditures.
SHEPHERD: In the 2001 - 2002 cycle, independent spending was about 2.7 million, whereas in the most recent election cycle, 2011-2012, this number was 24.1 million. So that's a 10-fold increase over the decade.
BOB: Shepherd is co-author of a new study from Emory and the American Constitution Society that found that ads produced to influence judicial elections are designed to press the voters’ hottest buttons.
SHEPHERD: Most voters don't really care about a lot of the technical, somebody breached a contract, somebody didn't perform this the way they were supposed to, but what they do care about are ads about the way judges voted in specific criminal cases. And it might a little something like this....
AD: When child molesters sued to stop electronic monitoring of their locations, a law that let us track child molesters near schools, playgrounds, daycare centers, Supreme Court justice Robin Hudson sided with the predators. Hudson decided that child molester's right to privacy ...and took the side of convicted molesters. Justice Robin Hudson, not tough on child molesters, not fair to victims.
BOB: Do the facts of this case actually support the allegation in the ad?
SHEPHERD: No. They don't. There was a new law in North Carolina that said that people who had been convicted child molesters could be monitored electronically. The problem was that the law as written could be construed as applying to people previously convicted. And so that means it was instituting a retroactive punishment. And although that may sound good, that is actually unconstitutional in the United States, to pass a new law that applies retroactively. And so, Hudson's call was really based on her interpretation of the Constitution. Certainly not here support child molesters or anyone else.
BOB: Well who did fund it?
SHEPHERD: This ad was funded by a conservative group that in the past has received money from the Koch Brothers. The Justice For All - North Carolina SuperPac.
BOB: Ah. The Koch Brothers. So it's one thing to establish that the PACs have an agenda beyond, say, softness on crime. That they have political and economic motivation for unseating an incumbent. That's one set of problems. The other set is if in incumbents actually change their behaviors on the bench in order to protect themselves in subsequent elections. How do you go about ascertaining if that's going on?
SHEPHERD: Over the years there's been various surveys that ask judges what are the influences on the way they make decisions on the bench. And in several of these surveys -- which are anonymous -- the judges have indicated that money does seem to matter. For example, 46 percent of judges believe that campaign contributions have at least some influences on their decisions. I worked with a team of independent researchers at Emory University to code data from criminal appeal cases in the state supreme court of 32 states. From 2008 to 2013 to see if there was an empirical link between the money, the TV ads, the recent ruling in Citizens United and the way judges are ruling in these criminal cases.
BOB: And you discovered, sure enough, there is a correlation.
SHEPHERD: We found that the more TV ads aired during state supreme court judicial elections, the less likely justices are to vote in favor of criminal defendants. We consider a vote in favor of the criminal defendant to be any vote that betters the criminal's position at all - from the position they were in prior to appealing their case to the supreme court.
BOB: And can you quantify the margin, pre-Citizen's United to post Citizen's United?
SHEPHERD: Prior to Citizen's United in the states that had bans on independent spending we found that judges were about 7 percent more likely to vote in favor of criminal defendants than they were after Citizen's United. When the bans on independent spending were eliminated and hence unleashed unlimited corporate and union independent expenditures which are some of the prior sources for funding for TV ads.
BOB: On the subject of bias, the American Constitution Society is not a neutral player in this case. It's a think tank with an advocacy role and it's a progressive organization - come from the political left. Should that influence how I interpret your research results?
SHEPHERD: I worked with the American Constitution Society in gathering this data, but I am a Professor at Emory University Law School. The data collection is very expensive so with ACS' interest in these issues, it enabled to fund coding of the cases. But ACS was in no way involved in choosing the researchers. Choosing how I directed the study or anything like that.
BOB: The results you've shared with us today are horrifying. Not in anyway surprising. Now that we have statistical evidence that outside money is being used not only to influence elections but also actual performance of duties by elected officials. What are we supposed to do with it?
SHEPHERD: It really distorts the role of the judiciary from a neutral interpreter of the law to something that's more political by nature. Currently the states are split on whether or not individual judges can ask for financial contributions directly to contributors. And there's a new case pending before the Supreme Court this year: Lanell Williams-Yulee vs. The Florida Bar which will ask state bans on judges individually soliciting campaign contributions are constitutional or not. And obviously that's a big issue. The implications of our study and other studies in the past suggest that money is influencing case outcomes. And so if judges are able to directly solicit money that will potentially make the problem significantly worse.
BOB: There was a time when the judiciary was mainly appointed. And society has come around to a different way of thinking. Does your data suggest that we had it right in the first place?
SHEPHERD: Yeah well the original 13 colonies were appointive and it was during the Jacksonian era. Where elections were heralded as protecting our government officials from any sort of undue influence. When the states were considering a switch to elections that did not anticipate how much money would be raised...how political they would become. There's a quote from a union organizer who's been involved campaigning in these judicial elections, who says, 'we figured out a long time ago that it's easier to elect 7 justices than 132 legislators'. And that's essentially what's going. We can influence which laws are passed, or we can influence how those laws are interpreted and whether or not they're upheld once they reach the Supreme Court. And you know, it's money will spend.
BOB: Joanna, thank you so much.
SHEPHERD: You're welcome. Thank you for having me.
BOB: Joanna Shepherd is co-author of Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases, a new study from Emory University and the American Constitution Society.