Untraceable dark money is making state Supreme Courts more conservative

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A new report shows just how pervasive — and influential — dark money has become in state courts.

The harmful effect of dark money in national political races is well-recognized, but the role of untraceable unlimited funding at the state judicial level is often ignored. A recent report from the Brennan Center shows just how pervasive — and influential — dark money has become in state Supreme Court races. And that dark money is helping the GOP reshape state courts.

Of course, this all goes back to the Citizens United decision, which held that this sort of spending, bottomless and hidden from oversight, was perfectly fine. With that, it was likely inevitable that state Supreme Courts would become an attractive target for special interest groups.

Spending large sums on state Supreme Court races is still a relative bargain. It's much cheaper to spend money at the state level to change the composition of the court than to install elected officials at the national level. With 39 states using some form of elections for members of the highest state courts, they're a ripe target.

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The Brennan Center found that special interest groups accounted for 27% of all state Supreme Court election spending from 2017 to 2018. As a point of comparison, the report points out that over the last 20 years, congressional elections have never seen interest groups account for more than 19% of all spending in a cycle.

The largest of these interest groups are entirely opaque about where their money comes from. Eight of 10 of the largest special interest groups don't detail where their money comes from. To be fair, some of these groups backed progressive candidates in state judicial races. However, where NC Families First, the largest Democrat-funded group, spent roughly $1.2 million in the 2017-18 election cycle, the Republican State Leadership Committee's Judicial Fairness Initiative spent $4.1 million in races in three states.

The Brennan Center also found that the Judicial Crisis Network was "the likely source of most of RSLC-JFI's funds." JCN is most well-known for spending vast sums of money on the confirmation of Supreme Court Justices Brett Kavanaugh and Neil Gorsuch. Across those two races, JCN is estimated to have spent more than $20 million. And they could afford it, since they received $22 million in anonymous donations in 2017, with $17 million of that coming from a single donor.

All of this anonymous and untraceable money means that, as the Brennan Center notes, the public is "without vital information about who is trying to sway their vote and influence who sits on their state's highest court." And with that anonymity, conflicts of interest can be hidden. If it is unclear who is funding races, it's equally unclear whether the candidates beholden to that money are beholden to someone else as well.

Three states saw outsized proportion of dark money. Of the over $5 million spent in state Supreme Court races in Wisconsin in 2018, nearly 50% of that came from special interest groups. In West Virginia, where a scandal over members of the highest court misusing funds led to several judicial resignations in 2018, special interest funding accounted for 65% of the $3.7 million spent on races for two seats.

Arkansas, however, saw the most outside, secretive spending. Special interest groups spent $2.8 million, or 84% of all money spent on the race, for just one seat. Of that, RSLC-JFI spent $1.1 million, while the Judicial Crisis Network spent over $900,000 under its own name.

No one can quite say where that money comes from. The Brennan Center tried to trace JCN's funding and hit a wall. It's likely that the $17 million donation to JCN came from the Wellspring Committee, which funds a variety of conservative causes, including anti-abortion groups. But no one knows who funded Wellspring, which was reported to have closed its doors in May 2019.

Even when it is clearer where funds come from, the result is still equally problematic. The Brennan Center report highlighted two instances where this was true. In races in Louisiana, where oil and gas companies don't want to be on the hook for environmental damages, those companies have been "major drivers" of state Supreme Court spending. In New Mexico, those same types of companies donate to state Supreme Court candidates to get access to mineral rights. In Justice Gary Clingman's race, he raised 25% of his money from those industries alone. He also chose to forego public funding. And why not? When there's a near-bottomless supply of dark or corporate money, there's no real reason to accept public funding and the restrictions that go with it.

Make no mistake: This dark money has been effective at moving courts to the right. Wisconsin is the best example. In 2018, Brian Hagedorn, who had been former Republican Gov. Scott Walker's chief legal counsel until Walker appointed him to the Wisconsin Court of Appeals, ran against fellow Court of Appeals Judge Lisa Neubauer for a seat on the state Supreme Court. Hagedorn was so conservative that even normally conservative groups declined to support him, citing his extreme anti-LGBTQ views. Hagedorn had founded a school that banned LGBTQ students, parents, and teachers if they were in same-sex relationships.

Even without the backing of more moderate conservatives, Hagedorn won the race, boosted in no small part from a late $1.3 million ad buy from the Republican State Leadership Committee. Those ads urged people that supported Trump to support Hagedorn, implying the attacks on Hagedorn's ultra-conservative record were similar to attacks on Justice Brett Kavanaugh. With Hagedorn's victory, conservatives now have a decisive 5-2 majority on the state Supreme Court.

Funneling money to extreme anti-LGBTQ conservatives is nothing new for the GOP. It's what happened back in 2010 to several Iowa state Supreme Court justices who had ruled in favor of same-sex marriage. A well-funded recall campaign removed three judges in one fell swoop, and it let the GOP know that if it threw enough money at these races it could dramatically shift the landscape.

Progressives have spent a lot of time over the last three years monitoring Donald Trump's terrible federal judicial picks, and rightly so. However, it's equally important to keep an eye on state Supreme Courts, where dark money is moving the needle rightward.

Published with permission of The American Independent Foundation.