Historically, judicial elections involved little in the way of campaign spending, but in Texas in the 1980s, Karl Rove recognized the potential of backing judges favoring a conservative agenda. The strategy soon spread, with donations to state supreme court candidates nationwide totaling $83 million in the 1990s and more than $206 million in the 2000s.
Rove went on to work with business power brokers in Alabama; donations to that state's Supreme Court candidates since 2000 (including "Ten Commandments Judge" Roy Moore) have been higher than in any other state, totaling more than $48 million.
But direct spending by judicial campaigns was just the beginning. Over the last decade, outside spending by special-interest and partisan groups has soared. And Citizens United is accelerating that trend: In the 2011-12 cycle, spending from outside groups came in at a record $24.9 million—a nearly sevenfold increase since 2000.
This year, partisan groups have continued to spend millions in states like North Carolina and Tennessee, aiming to unseat supreme court justices. Judges in these scenarios "have had to become professional fundraisers," says Bert Brandenberg, executive director of the judicial-reform group Justice at Stake, "often soliciting money from parties who will appear before them in court."
No one knows exactly how much money is spent on judicial races, in part because state disclosure laws are weak. An analysis by the National Institute on Money in State Politics gave 26 states a failing grade on monitoring such spending.
Fewer than two dozen big players were behind nearly $72 million in campaign spending on supreme court races nationwide between 2000 and 2012. They included business heavyweights such as the US Chamber of Commerce and partisan groups focused on specific races in states like Michigan (where an estimated $13-$18 million was spent in 2011-12), Florida (at least $4.8 million in 2011-12), and North Carolina (at least $4.5 million in 2011-12).
The outside money, which has more than tripled over the last decade, primarily funds TV attack ads. In 2012, an ad backing a Republican judicial candidate in Ohio said his Democratic opponent "expressed sympathy for rapists." In the North Carolina Supreme Court primary this year, an ad blasted a candidate who "sides with child predators." The local bar association condemned that ad, as did six former state justices, calling it "disgusting" and "false."
Campaign funding in races for lower courts is even more obscure—despite the fact that these races produce the vast majority of judges, and those most citizens will face. The first ever set of data on these races, compiled for 10 states, shows that more than $55 million was raised during the 2011-12 election cycle alone.
The total cost of judicial elections ($288 million since 2000) is still nowhere near that of congressional races ($17 billion since 2000). Donors potentially buy a lot more influence, with less money, when they back judges: In West Virginia in 2004, the CEO of Massey Energy spent $3 million on his preferred Supreme Court candidate; that justice later cast the deciding vote to overturn a $50 million verdict against the company—a nearly 1,600 percent return on investment.
Read our story on how judicial elections have been overtaken by secretive interest groups, nasty ads, and the constant hustle for campaign cash.
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