Report on state supreme court election spending cites California as model

While nearly $40 million was spent nationwide in 2017 and 2018 seeking to influence 48 judicial elections for 21 state Supreme Courts, not a dollar was spent in California, according to a study released Wednesday by The Brennan Center for Justice at New York University School of Law.

The report's author and the center's counsel, Douglas Keith, said, "California has some of the best campaign finance disclosure laws in the country, and some of those have even been improved recently."

Shadowy donors realizing they are unable to finance campaigns anonymously could result in them deciding not to give at all, he added.

Keith made a distinction between "dark" and "gray" money where an original donor transfers money from group to group in an effort to obfuscate who spent it in the first place.

"California has some of the most forward looking campaign finance laws in the country, which require groups to acknowledge when large amounts of money have been transferred to them by other groups for the purpose of spending in political races," Keith said. "We would be in good shape if other states did look to California for disclosure laws."

While there were two retention elections for the California Supreme Court in November 2018, no money was spent on them. Justices Carol Corrigan and Leondra Kruger were retained to complete the back half of their 12-year terms.

Keith said unless a concerted effort is made against a sitting judge, they typically will not spend money on a campaign as voters are simply asked whether that judge should remain in their seat or not.

Though "you can still see spending in retention races," Keith said. "In fact, California has sort of a sordid history with Supreme Court elections. One of the earliest big money races was the 1986 retention elections focused around Chief Justice Rose Bird."

Bird voted to overturn each of the 64 death penalty cases appealed to her court. In 61 of those cases, she was joined by at least three other justices. In 1986, voters removed Bird and three of her colleagues.

Keith mentioned a group of former judges in Arkansas he came across in his research who set about evaluating all the ads that ran in their state Supreme Court election. They sent cease and desist letters that had limited success in getting local stations to stop running ads the group deemed to constitute misinformation.

"It's even more nontransparent in Supreme Court elections," Keith said, comparing special interest spending in elections in general to those picking members of Supreme Courts.

These races tend to fly under the radar compared to other elections, and the people trying to influence them are "extremely sophisticated, they know what their interests are and how the Supreme Court impacts them and probably what kind of return they're getting on their money," Keith said.

Though health insurance and oil lobbies are consistently among top donors, the individual identity of contributors tends to be state specific and correspond to people and firms closely connected to a given state's most pressing legal issues.

In Louisiana, for example, a large cohort of contributions come from "lawyers and businesses involved in lawsuits demanding that oil and gas companies pay for environmental damage to coastal properties."

"More disclosure will both enable voters and the public to know who is spending in these races, who cares so much about who sits on their court, and know when there are major conflicts of interest," Keith said.