In a slew of recent decisions, the U.S. Supreme Court has relinquished decision making on controversial issues such as abortion and environmental regulation to individual states.
An inevitable result: Powerful lobbying groups laser focusing on state supreme court races in the 39 states where justices are elected.
The influence of outside interests is familiar to state justices in Mississippi, where candidates run in ostensibly nonpartisan elections for eight-year terms.
While the candidates don’t run under party labels, they often receive backing from elected state officials and outside groups with very clear partisan affiliations. The Mississippi Republican Party, then Republican Gov. Phil Bryant, current Gov. Tate Reeves and Lt. Gov. Delbert Hosemann, also both Republicans, all made endorsements in the 2020 race for the eventual winners – Kenny Griffis and Josiah Coleman.
Endorsements and financial support from politicians, businesses and lobbying groups can have a tangible impact on how fairly and impartially judges rule.
The U.S. Chamber of Commerce, for example, pioneered a strategy still used today to get candidates they support on the bench: running ads against their opponents accusing them of being “soft on crime” and failing to deliver justice to victims.
Mississippi Supreme Court races served as an early test for this strategy. In 2000, the Chamber poured money into the state and successfully put three favored justices on the bench.
“A deeply troubling line of research has found that [a phenomenon] called sentencing cycles exists,” said Douglas Keith, counsel in the Brennan’s Center Democracy Program. Essentially, as elections approach, the average sentence length passed down by judges lengthens and after the election passes, it gets shorter again. Sentencing cycles are most prevalent in states where elections are highly politicized.
In Alabama, one of two states where elected judges can overrule the verdict of the jury, an Equal Justice Initiative report found that judges are more likely to overrule a life sentence from the jury in favor of the death penalty in election years. In 2008, 30% of death sentences were imposed by judges against the will of the jury, as opposed to 7% in 1997, when there was no election.
The torrent of outside spending on judicial elections in Mississippi unleashed in 2000 has since been replicated in states across the nation where justices are elected. And election cycle after election cycle, these groups continue to break their own spending records — notably, with conservative groups consistently outspending their liberal counterparts.
According to a report by the Brennan Center for Justice, spending on all state supreme court elections in the 2001-2002 cycle, including spending by candidates themselves, totaled $47.38 million in 2020 dollars. In 2019-2020, this total reached a record-breaking $98.09 million, with outside groups making up 36% of all spending – their largest share ever.
The same Brennan Center study reports that outside groups spent $396,394 in 2020 the two contested Supreme Court elections in Mississippi. All of it was spent in support of the conservative incumbents, Kenny Griffis and Josiah Coleman, both of whom won their elections.
Lobby group flexes muscle in Mississippi Supreme Court race
Appointed to the highest state court after a seat became vacant earlier the same year, Oliver Diaz, the only candidate to win without the U.S. Chamber’s endorsement, officially announced his campaign for re-election to the Mississippi Supreme Court in June 2000.
Diaz and other candidates were gearing up to spend what were at the time unbelievable amounts of money in the 2000 judicial race — as the November election approached, the price tag ticked upward to $300,000.
A few weeks before the election, the Chamber entered the playing field, the first time it had done so in Mississippi judicial elections.
Four judicial candidates — Kay Cobb, Leonore Prather, Jim Smith and Keith Starrett, Diaz’s opponent — were surprised when advertisements in their favor started to appear on television, not knowing where the ads were coming from until the final frame, read “Paid for by the U.S. Chamber of Commerce.”
The Mississippi Trial Lawyers Association estimated the Chamber had spent up to $420,000 on the ads. All four candidates denied any prior knowledge of this spending.
Candidates featured in the ads and their opponents alike raised questions about the legality of Chamber’s spending and its impact on the court’s legitimacy. In a shrewd move, its representatives maintained the ads did not in fact endorse any candidate calling them “educational” and merely stating biographical information and the candidates’ merits.
What would motivate the world’s largest business federation to invest so heavily in judicial elections that were not even at the forefront of the minds of the voters themselves?
According to the ads, it was defending victims, praising candidates for being “tough on crime” and bringing justice to victims and their families.
Keith, counsel at the Brennan Center and an expert on money’s influence on courts, says the ads were never really about crime. “The groups behind the spending, they don’t care one lick about criminal justice issues,” he said. “They just know that this is how they’re going to get voters’ attention.”
The interest of business groups, like the U.S. Chamber, is something much more straightforward: business. Court rulings in suits against corporations and on the constitutionality of tax and regulation legislation affect their bottom line, and big business is willing to spend exorbitant amounts of money to put justices on the bench they think will provide a good return on investment.
That pitch would not resonate with the average working-class voter who has little incentive to vote for a candidate whose top priority is helping those who already have the most power. Instead, Keith said, the Chamber tried to “tug on the heartstrings of voters and get their attention in really the most vile and misleading ways.” The ads overwhelmingly focused on violence against women and children.
Because judicial elections had previously been so far under the radar, the Chamber’s ads garnered significant attention, compared to the cost of advertising for other offices. “The public is just not paying as much attention to them as they are to other races,” Keith said. “And for that reason, these elections comparatively are pretty cheap to influence. With an amount of money that in a U.S. Senate race might seem insignificant, you can really be the dominant voice in a judicial election.”
By Diaz’s next election, outside interest groups had refined the Chamber’s tactics.
In 2008, during his run for re-election against Randy “Bubba” Pierce, the Law Enforcement Alliance for America, a conservative political advocacy group with ties to the National Rifle Association, ran a questionable $660,000 ad campaign accusing Diaz of “voting for” rapists and murders. A few weeks before election day, many stations pulled these ads after state authorities denounced them, but it was too late. Diaz lost his seat with 42% of the vote.
As in 2000, spending on the 2008 Mississippi judicial elections broke records — totalling $1.3 million. Since then, the price tag of a state Supreme Court justice race has skyrocketed across the nation.
“I knew that elections in Mississippi were forever changed,” said Diaz. “Once that door is opened, it’s impossible to shut.”
Outside groups spending more and more effectively
Partly responsible for increased spending – and the increasing success of the highest spender putting their preferred candidate on the bench – is the U.S. Supreme Court’s 2010 decision in Citizens United v. FEC. The court ruled that super PACs don’t have the same spending limits as other political action committees and are allowed to take donations of any amount from dark money groups that aren’t required to disclose their own donors. This decision drastically increased the ability of lobbying groups to impose their interests on elected officials.
Not only are outside groups spending more, but they are also spending more effectively.
The Chamber’s last-minute ambush strategy from 2000 has been replaced by an organized, air-tight, coordinated effort with a paper trail difficult to track — virtually impossible in Mississippi, since it is the only state in the nation that does not require candidates and political action committees to submit their campaign finance records as searchable PDFs. (While most are at least typed, some reports, like those Secretary of State Michael Watson submitted in 2020, are handwritten.)
Submitting its campaign finance records in a combination of typed tables and refreshingly legible handwriting, Improve Mississippi PAC – a political campaign sister of the Business and Industry Political Education Committee – was the source of all outside spending in support of Coleman and Griffis in 2020 — or rather, it took in funds from other groups hoping to get the two elected and coordinated the spending. Improve MS did not spend in support of any other candidates in 2020.
Improve Mississippi does not have any explicit ties to the Republican State Leadership Committee, a national organization with the purpose of electing Republicans to state-level offices and the leading spender in state Supreme Court elections. But it received $50,000 from the RSLC Mississippi PAC on Sept. 23, 2020, RSLC Mississippi’s only expenditure for the year. Improve Mississippi also received the same amount from the national RSLC on the same day.
While no longer at the forefront of spending in judicial elections, the U.S. Chamber of Commerce is not entirely out of the picture. It donated $2.6 million to the RSLC in 2020, 5.64% of all contributions it received.
Unlike the Chamber’s 2000 ads, candidates should not have been blindsided by Improve Mississippi’s support. Of the 26 unique donors to Improve Mississippi, 18 of these PACs and businesses also donated to one or both of Griffis and Coleman’s campaigns, a combined almost $500,000 to their campaigns and to Improve Mississippi, a staggering one-third of all money spent in support of any Mississippi Supreme Court candidate in 2020.
Improve Mississippi’s largest contributor was the Mississippi Physicians PAC, donating $150,000. Mississippi Physicians PAC also contributed $5,000 each to Griffis and Coleman, the maximum amount a unique donor may give to a Mississippi Supreme Court candidate in a calendar year (certain businesses are limited to contributing $1,000). These donations made up 73% of Mississippi Physicians PAC’s total spending in 2020.
Other large donors included MS Realtors PAC, MS Bankers PAC, MS Medical PAC and Sanderson Farms. Former Sanderson Farms President Joe F. Sanderson Jr., who also contributed to the Griffis and Coleman campaigns, ranks among the top political spenders in all of Mississippi.
These 18 donors are representative of the makeup of the money spent to elect Griffis and Coleman. They primarily come from the medical and business sectors and they spend big.
Businesses and those representing their interests, in sectors ranging from manufacturing to beverages and poultry to real estate, donated 43% of all money spent by the two candidates’ campaigns and Improve Mississippi. Notably, many of the businesses that made contributions are multimillion-dollar corporations, not family-owned, local businesses. Those in the medical field contributed 23.9% of the fund and the legal sector trailed behind at 9.4%.
This data is not entirely accurate because both Griffis and Coleman did not report the employer of certain individual donors, though they are required to under the campaign finance guidelines published by the secretary of state’s office. The vast majority of donors with missing information came from Coleman’s records. The campaign did not report the employer of 133 individuals. Money from these individuals made up 35% of all contributions to Coleman’s campaign.
One important group of donors is largely missing from the hundreds of pages of campaign finance filings from which this data comes: working-class Mississippians. The majority of donations Griffis and Coleman received were from PACs and businesses. And of the portion of funds coming from individual donors, most came from individuals who could afford to write a check for $1,000 or more. Of all money spent in support of Griffis and Coleman, only 14.4% came from individuals donating less than $1,000.
Mississippi’s average household income, the lowest in the nation, is $46,511. But even those with disposable income to donate to the justice they feel best represents average Mississippians like themselves would hardly make a dent. Big businesses, PACs, and wealthy donors outspend them with ease.
Groups refine their methods
Though they were not the ones financing Griffis and Coleman’s campaigns, average Mississippi voters were the ones to ultimately deliver their seats on the bench. But these voters arguably don’t share the same interests as the wealthy CEOs, big businesses, and PACs that did provide the funding.
To reconcile the difference, Improve MS essentially acted as a translator, taking the interests and money of their donors and transforming them into a message that would get voters’ attention.
Reflecting the increasing political polarization at every level of government, from the White House to local school boards, Improve Mississippi’s messaging took a different tone than ads from previous years about crime and protecting victims, which presumably appeals to all voters. Instead, they, as well as the candidates themselves, directly targeted conservative voters. Improve Mississippi encouraged voters to select “constitutional conservatives” for the Supreme Court that would follow the “rule of law” and not “legislate from the bench,” as they alleged the more liberal candidates would.
As the U.S. Supreme Court gives power to state courts on reproductive rights, voter redistricting and potentially other cornerstone issues such as marriage equality and contraception access, it is likely more and more well-funded lobbying groups will join the fight to elect justices that will rule in their favor.
Though the gap is gradually closing, conservative-leaning groups far outspend more liberal lobbying groups in judicial elections.
The most effective path to restoring integrity and impartiality to state supreme courts is unclear.
“Judicial elections are really one of the worst forms of picking a judge,” Diaz said. “We’ve got to do away with judicial elections; it’s just not a system that will provide you with the best judges.”
But he also acknowledged partisan politics certainly still play a role where justices are appointed. Answers may lie elsewhere.
New Mexico does public financing for its judicial elections, he said, essentially giving candidates “enough money to run a statewide campaign, advertise on TV, do all the stuff that candidates do to try to get elected, and there’s no special interest money coming in.”
— Article credit to Noel Sims of the Mississippi Center for Investigative Reporting —
