Demonstration outside the U.S. Supreme Court to bring attention to reconsideration of the Citizens United v. FEC decision. February 23, 2012.
Demonstration outside the U.S. Supreme Court to bring attention to reconsideration of the Citizens United v. FEC decision. February 23, 2012. (Photo: Diego M. Radzinschi/NLJ)

Skyrocketing spending on television advertising in state supreme court elections has rendered justices less likely to vote in favor of criminal defendants, a new study found.

And in the 23 states whose election bans on corporate and union independent spending fell because of the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission, justices also were less likely to vote for criminal defendants than before the 2010 decision.

Although their priorities are not necessarily criminal justice policy, outside interest groups, fueling the spending explosion in judicial elections, have discovered the effectiveness of “soft on crime” attack ads, and that is having concrete effects on judicial decision-making, according to the study’s authors, Joanna Shepherd and Michael Kang of Emory University School of Law in Atlanta.

The two law professors, with support from the American Constitution Society, collected and coded data from more than 3,000 criminal appeals decided in state supreme courts in 32 states and examined published opinions between 2008 and 2013. The researchers coded individual votes from more than 470 justices in these cases and merged the coded cases with data from the Brennan Center for Justice on the number of TV ads aired during each judicial election during the survey period.

Their findings, the authors said, not only confirm the influence of campaign spending on judicial decision-making, “they also show that this influence extends to a wide range of cases beyond the primary policy interests of the contributors themselves. Even more troubling, the findings reveal that the influence of money has spread from civil cases to criminal cases, in which the fundamental rights of all Americans can be at stake.”

The study shows, for example, that with 10,000 ads, a doubling of airings corresponds, on average, to an 8 percent increase in justices’ voting against a criminal defendant’s appeal. And in the states whose corporate and union spending bans were invalidated by Citizens United, unlimited spending is associated with, on average, a 7 percent decrease in justices’ voting in favor of criminal defendants.

Republican justices are slightly less likely to vote in favor of criminal defendants than other justices, according to the study.

“However, the analysis indicates that TV ads exacerbate this difference,” it says. “Even starting from different baselines, the relationship between campaign ads and judicial voting is stronger for Republicans than either Democrats or independents.”

The authors said their findings are likely “only a preview of escalating trends” in judicial election spending.

“There has been only one presidential election cycle since Citizens United,” they said. “Outside groups, whether funded by corporations, unions and wealthy individuals, have only begun to professionalize their operations and will only grow more sophisticated in the years to come.”

The study is available at skewedjustice.org.

The authors have conducted a number of studies examining the relationship between campaign contributions and judicial decision-making, finding, for example that:

• Contributions from various interest groups are associated with increases in the probability that judges will vote in favor of the litigants whom those interest groups favor.

• Campaign contributions from business groups to state supreme court justices were correlated with judicial decisions favorable to business interests, at least in states with partisan judicial elections.

• The relationship between business contributions and judges’ voting was stronger in the period from 2010 to 2012 compared to 1995 to 1998.