While deep-pocketed super PACs and ultra-wealthy donors have attracted plenty of attention in the presidential contest this year, they are also making waves further down the political food chain. The mere possibility that a rich benefactor or interest group with endless amounts of money could swoop in, write massive checks and remake an entire court for ideological reasons has prompted judges here in Florida and elsewhere to prepare for battles they never expected to fight.
The three justices sipping water and shaking hands in the ballroom decided months ago that they needed to campaign early and hard. They saw two of their colleagues targeted in 2010 after the court refused to allow a ballot measure opposing a key provision in President Obama’s health-care plan. They knew the organizers of that effort, angry about what they call “judicial activism,” had promised to step up their campaign and had formed a political organization that by law can raise unlimited money.
The judges were less than excited about having to ask people for money.
“It is almost embarrassing to be doing it,” Justice Fred Lewis said.
“It’s an awkward thing,” Justice Barbara Pariente agreed.
“We should not have to go around and have our friends and committees collecting money,” Justice Peggy Quince added. “We don’t want to get caught up in those kinds of things.”
Those challenging the judges say their actions offer a way to inform the public and hold the judiciary accountable. The judges say they welcome accountability but want to protect the independence of the bench.
Like judges elsewhere, those in Florida remain rattled by what happened two years ago in Iowa, where three state Supreme Court justices who had upheld a ruling in favor of same-sex marriage lost their jobs after a vitriolic million-dollar campaign to unseat them — money coming almost entirely from outside the state. In the preceding decade, not a single dollar had reportedly been spent on Iowa’s high court elections.
Similar but lower-profile efforts have taken place in Alaska, Colorado and Illinois.
And so, with the help of friends in the legal community who have formed fundraising committees — including a former attorney general, a former justice and former leaders of the state bar — the three Florida justices have honed their stump speeches.
“Please do not let our court system be polarized in any way,” Lewis said to those assembled at the fundraiser.
“We want our system to continue without the politics,” Quince added.
“I know you want us to not be scared that [because of] the way we rule on a given case, someone wants to take us out,” Pariente told the crowd, saying she was outraged by the “faceless, nameless opponents” so eager to attack judges based on a select few rulings.
Just a dozen miles from where the justices were raising money, in a quiet suburban neighborhood, one of those opponents already had lined up a strategy session for the following night on how to boost the campaign against them.
‘Like sitting ducks’
Judicial elections have long drawn the interest of wealthy benefactors, business and labor groups, and trial lawyers, but watchdog groups say they are particularly troubled by a new trend: The universe of big donors has grown smaller and more concentrated.
In a 2010 study that examined 29 judicial races, the watchdog group Justice at Stake found that the top five spenders averaged $473,000 apiece, while all other donors averaged $850. In addition, loopholes in disclosure laws gave those big donors ways to spend money “in substantial secrecy,” the report found.
“Outside forces are becoming a bigger deal,” said Roy Schotland, a Georgetown University law professor and expert on judicial elections. “We’re seeing more takeover of the races from the outside.”
Schotland said state judicial races are increasingly becoming “floating auctions,” in which special-interest groups focus money and manpower in states where they can upend judges they don’t like. “The justices are like sitting ducks,” he said.
Judicial races have been attractive to donors in the past in part because of their relative obscurity. The contests often draw little public scrutiny, voters rarely know the names on the ballots, and backing them is cheaper than trying to buy an entire state legislature.
“It’s the single best investment in American politics,” said Charles Hall, spokesman for Justice at Stake. “A few big spenders can really have an outsize effect.”
From 2000 to 2009, spending on judicial campaigns more than doubled over the previous decade, according to a joint report by Justice at Stake, the Brennan Center for Justice and the National Institute on Money in State Politics.
The examples are numerous.
Last year, in the wake of a controversial collective-bargaining bill passed by the Wisconsin legislature, outside groups poured huge resources into the state Supreme Court election, airing nearly $4 million in negative television ads.
Much the same happened a year earlier during a pair of Supreme Court races in Michigan, where outside groups spent nearly $9 million — most of it during an ad blitz in the final week of the campaign — far dwarfing what the candidates themselves spent.
In a now-famous example from 2004, Massey Energy chief executive Don Blankenship spent $3 million to help elect a justice to the West Virginia Supreme Court who went on to rule in favor of his company in a key lawsuit. The U.S. Supreme Court found that Blankenship’s role had created such a conflict of interest that it forbid the newly elected justice from ruling on the case.
Florida, unlike many other states, does not hold competitive Supreme Court elections. The governor appoints the justices, and every six years voters decide whether to retain them. Traditionally, that has been little more than a formality; no Florida justice has been voted off the bench since the system was put in place nearly four decades ago.
But outside groups have been increasingly willing to challenge judges in retention races, which in the past have drawn almost no money and no attention.
Nowhere was that strategy more apparent — and successful — than in Iowa, where conservative activists in 2010 ousted three state Supreme Court justices who had upheld the legality of same-sex unions. Five groups from out of state spent nearly $1 million on that campaign. Four of them, including the National Organization for Marriage and the Citizens United Political Victory Fund, are based in the District or Arlington.
“Judges around the country took notice; they talk about it,” Seth Andersen, executive director of the Iowa-based American Judicature Society, said of that effort. He said judges were facing the reality that one decision could attract the wrath of well-funded special interests. “It’s like hearing footsteps,” he said. “The point is, what’s the ripple effect?”
‘Different world now’
In Florida, the driving force behind the ad hoc campaign in 2010 to unseat two Supreme Court justices was tea party activist Jesse Phillips.
Phillips lives in a modest two-story home in Winter Park, northeast of Orlando. The father of three sons is a computer programmer. He also is the face of Restore Justice 2012, a political group formed to undertake a “voter education campaign” aimed at unseating the three Florida Supreme Court justices facing retention votes in November.
“One of the great obstacles is the judicial branch,” Phillips said in an interview. “We can make all the strides we can make in the executive and legislative branch, and we can have all that thrown out if we don’t have a court that’s responsible to the will of the people.”
He has constructed a Web site that calls Florida’s Supreme Court “one of the most activist courts in the nation” and details decisions that he says show how the justices he opposes are “consistently on the wrong side of issues.”
Phillips singled out the health-care ballot measure and other key decisions involving school vouchers and corporate liability. Also, he said, he would prefer to see Republican Gov. Rick Scott have a chance to leave his mark on the court.
He declined to say how much his group has received in donations or from whom. He has hired two part-time staff members, he said, and hopes to have volunteer organizers in all 67 Florida counties by Sunday.
“To be successful, we’re going to have to run what would amount to a U.S. Senate campaign,” he said, saying he would need to raise “easily over $1 million.”
Back on the 18th floor of the downtown high-rise, the campaigning justices insisted that their main concern isn’t a 28-year-old computer programmer with tea party beliefs and an appealing Web site.
Rather, they worry about the powerful outside groups and political kingmakers who could decide to fund Phillips’s venture, the ones with the ability to descend in the final weeks of a campaign and spend millions. They worry about what Quince called “an uneven playing field,” in which the justices face strict rules on how they can campaign, what they can say and how much money they can raise, while outside political groups have few such restrictions. More than anything, they worry that the judicial branch is fast becoming just another prize on the political landscape.
Rather than ignore the new political reality, the justices have decided to fight it head on. Hours earlier, they had granted their first television interview to a local station. Last week, they held a fundraiser in Miami. On this day, Orlando. Next week, Tampa.
“It’s a completely different world now,” said Dan Stengle, a Tallahassee lawyer who is helping to run the justices’ campaigns. “We are going on the assumption — I think it would be foolish not to — that the attack will come. . . . We want to be ready for that hurricane.”