Whether this was from a genuine interest in and commitment to these issues, or because these companies cynically concluded that “wokeism” is good for the bottom line, it was a significant shift, and a good sign that ideas that had once been limited to the fringes of public debate were now mainstream. But money from these same corporations continues to work against criminal justice reform at a crucial level: state judicial elections.
In 38 states, state supreme court and appellate court justices are elected or retained through election after their initial appointment. In recent decades, as these judges have gained a larger role in setting public policy, these elections have become increasingly partisan and politicized. But because judicial races still get relatively little attention, they remain an area where interest groups can still get a lot of bang per donated buck. Spending on state supreme court races spiked from $12.8 million in 2007-2008 to about $70 million in 2015-2016.
And a common way to attack judges is to accuse them of being “soft on crime.” In states with some of the most contentious supreme court elections in recent years — Ohio, Michigan, Wisconsin, Louisiana — campaign ads have singled out a judge’s rulings to scare voters about “setting child killers” or rapists free. Typically, the ads misstate the law or the context of the ruling, and are later condemned or called to be retracted by independent campaign monitors and watchdog groups.
In terms of actually getting the groups’ favored candidates elected, the ads have a mixed record. In Mississippi, at least two state supreme court justices lost after being targeted. But justices in Michigan and Wisconsin have recently won reelection despite campaigns attacking their records in criminal cases.
Yet no matter the winning candidate, these ads have an unmistakable impact. A 2015 review of the academic literature by the Brennan Center for Justice found that judges and justices who emerge from races featuring ad campaigns are more likely to issue longer sentences and opt for death sentences, and less likely to rule for defendants on constitutional issues such as racial bias in jury selection, prosecutor misconduct, or ineffective assistance of counsel.
Most funding for these attacks has come from the right (though at least one Republican judge as has been attacked by Democratic interests as “soft on crime”), and much of that comes from business interests. Among the most active groups levying “soft on crime” accusations at justices in Michigan and Wisconsin, for example, have been both states’ chambers of commerce. Nationally, two advocacy groups — the Judicial Crisis Network and the Republican State Leadership Committee — have been particularly active waging these attacks, often by forming front groups in the states they’re targeting.
The JCN is a dark-money group and doesn’t reveal its donors. But the RSLC is required to disclose its donors under federal law. They include some of corporate America’s biggest names, including outspoken supporters of criminal justice reform. Google, Facebook and Amazon, for example, have all donated tens of thousands of dollars to the RSLC, with Google and Amazon donating after the George Floyd protests. (Disclosure: Amazon founder Jeff Bezos owns The Post.) Other major RSLC donors in recent years are the U.S. Chamber of Commerce, Blue Cross/Blue Shield, Berkshire Hathaway, Koch Industries and several pharmaceutical companies, all of which have also made statements or gestures supporting criminal justice reform, the protests or social justice.
Why would corporations fund attacks on judges for being soft on crime? The most likely explanation is that they believe “tough on crime” judges are more likely to be conservative, and therefore business-friendly, so they fund groups that work to elect conservative judges, irrespective of or oblivious to how they go about doing so.
But “tough on crime” judges aren’t always soft on business. Particularly in the South, politicians who rise to power through the plaintiffs’ bar or consumer advocacy often woo conservative voters by taking pro-carceral positions. And candidates who once defended corporations from state action can sometimes empathize with the people the government targets in criminal actions.
In fact, the Brennan Center’s Douglas Keith says the explanation may be even simpler. “I think they just identify a judge they want to get rid of, or a candidate they want on the court, and then they find ways to go after them, no matter how cynical or dishonest,” he says.
All of this comes in an era in which Congress and the federal courts are increasingly deferring to state courts when it comes to protecting constitutional rights, from post-conviction appeals, to police abuse, to junk forensics and wrongful convictions. The Bill of Rights is supposed to be inalienable. Yet we’re devolving its enforcement to state courts, where these groups use the democratic process to back judges who disregard those same rights.
The RSLC is a large organization, and judicial elections are only a portion of the races in which it gets involved. Because money is fungible, we can’t exactly say that one company’s $50,000 donation to the RSLC went for a “soft on crime” attack ad instead of, say, an ad about corporate income tax rates, or to support a more pro-business candidate for state attorney general.
But money talks. If a big corporate donor were to tell the RSLC or JNC that it plans to withhold further contributions until the groups cease the misleading attacks on judges over rulings in criminal cases, the groups would have no choice but to listen.