Campaign cash corrupts elections for judges just as it does more overtly political races for governor or representative, according to a report released by the Center for American Progress (CAP). Although the dollar amounts are small compared to those involved in presidential races, state supreme court candidates raised more than $200 million between 2000 and 2009 and spent a record $28 million on television ads in 2012 alone, with half of the money coming from independent groups.

CAP examined thousands of criminal cases decided by state supreme courts that, between 2000 and 2007, saw their first election costing more than $3 million (Georgia, Illinois, Mississippi, Nevada, Washington, West Virginia and Wisconsin), finding that “as elections approach, state supreme courts are more likely to rule for the state as the amount of money in high court elections increases.” In Illinois, for example, the year after the 2004 Supreme Court race broke spending records, the high court ruled for the prosecution in 69% of its criminal cases—an 18% jump over the previous year. Under similar circumstances, Mississippi’s high court ruled against defendants 90% of the time—a 20% increase, and Wisconsin’s pro-state rulings also jumped to 90% when the next election rolled around.

The study also found that when campaign spending spiked and then declined, as it did in Washington and Georgia after 2006, the percentage of rulings against defendants also peaked and dropped along with the campaign cash. But not all campaign cash is equal in its effect, according to the study, which found that the correlation between dollars and pro-prosecution decisions was strongest when groups not affiliated with the candidates paid for and produced their own attack ads.

It is those attack ads—which routinely use rulings in favor of a defendant as a sign that the judge is “soft on crime”—that the study blames for the bias. One ad aired in the 2012 Louisiana Supreme Court race claimed that one of the candidates had “suspended the sentence of a cocaine dealer, of a man who killed a state trooper, two more drug dealers, and over half the sentence of a child rapist.” Such ads, of course, ignore the factual and legal context of the underlying cases in order to play on voters’ fears and create political pressure for anti-defendant rulings.

Stephen Bright of the Southern Center for Human Rights has pointed out the corrosive effect attack ads have: “Opponents criticize judges for a lack of cruelty. Judges seek public approval by announcing their delight in helping to extinguish human life. Constitutional rulings are dismissed as mere ‘technicalities.’”

Ironically, the report concludes, these attack ads are mostly funded by big business interest groups with little concern regarding criminal prosecutions or the rights of defendants. Instead, the report cites a separate CAP study from May that “connected the political battle over state supreme courts to legal battles over tort reform bills, which limit liability for negligence or personal-injury lawsuits. As these tort reform bills proliferated, state supreme courts began to strike them down. Corporations that did not like being sued then began spending unprecedented sums of money to shape those state supreme courts, and their efforts have been very successful.”

Tort reform, such corporate front groups realized, is not a politically popular issue—not nearly as powerful as getting tough on crime. Judges who are supportive of a “tough” approach to criminal justice tend to be conservative overall, and thus more likely to support pro-business tort reform efforts. It could even be called a case of “bait and switch.”

-Matt Bewig

To Learn More:

Criminals and Campaign Cash: The Impact of Judicial Campaign Spending on Criminal Defendants (by Billy Corriher, Center for American Progress)