Political donors have realized that a donation to a state supreme court campaign brings higher yields than a donation to a state legislator's campaign: It’s more expensive to change who's passing the laws—often more than 100 people—than to change the handful of individuals who interpret them. When the campaign-finance levees broke after the 2010 ruling in Citizens United v. Federal Election Commission, money rushed in to judicial elections—and that money may be subtly changing the way judges deliberate.
Because judicial elections aren’t nearly as visible as congressional ones, it’s little known that 90 percent of state judges are up for election at one point or another, and that 38 states have judicial elections of some kind. Alexis de Tocqueville saw the problems with this setup early on, predicting that judicial elections would bring “disastrous results.” The concept of campaign promises seems logically inconsistent in the legal world, where decisions are theoretically made on a case-by-case basis, as it were.
When it comes to the financial side-effects of Citizens United on these elections, the before-and-afters are pretty striking. According to Emory law professor Joanna Shepherd, about $3 million was spent on 2002’s judicial elections, but for the 2012 elections that was up to $24 million. Another tabulation, this one from from the Brennan Center for Justice, indicated that spending rose from $39 million during the 2010 election season to $56 million during 2012’s. (To keep this in perspective, spending on this year’s congressional elections is estimated to be about $3.7 billion.)
