Fair Courts
Toolkit:
Environmental
Justice
Section
Acknowledgements
Author:
Eric Velasco
Production & management:
Piper Fund
15 Research Drive
Suite B
Amherst, MA 01002
www.proteusfund.org
Contact:
Kathy Bonnifield
Piper Program Officer,
Judicial Independence Project
413.256.0349 x139
[email protected]
Design & layout:
Nerissa Cooney
Piper Fund would like to extend special thanks to Eric Velasco, the
Brennan Center, and Dawn Johnsen, Walter W. Foskett Professor of Law at
Indiana University, for their invaluable research and efforts in developing
the content of these materials. We would also like to acknowledge
ReThink Media for their contribution and guidance in the development of
this series of Fair Courts Toolkits.
Piper Fund
Since 1997, Piper Fund, an initiative of Proteus Fund, has partnered with
foundations and individual donors to invest in and serve as a resource for
efforts to develop cutting-edge strategies to curb corporate and special
interest influence on politics, secure judicial independence, and protect our
democracy. Since its inception, Piper has awarded more than $27 million
in grants for this work. Between 2013 and 2014 alone, Piper’s grant making
totaled more than $8 million to over 45 organizations.
Judicial Independence Project
Piper Fund’s Judicial Independence Project (JIP) was established in early 2012
to build a broad, powerful fair courts movement with the breadth,
depth, and capacity to win policy reforms at the state-level to remove the
influence of special interest money from the judicial branch of our government.
Piper supports four policy remedies to promote fair courts: merit selection;
public financing of judicial elections; strong recusal rules; and disclosure of
corporate and special interest spending on judicial elections. As corporate
and conservative special interests work to skew the courts in their favor,
pushing back against these attempts to preserve fair courts that abide by
the law will, ultimately, uphold fundamental rights and protect our democracy.
The JIP intends to combat the power of moneyed interests through building
an increasingly diverse and powerful movement to protect the courts. This
requires engaging new constituencies and breaking down barriers between
issues. As an important step, through our Courts & Issues project, the JIP
is connecting fair courts to issues that resonate with the public in order
to engage diverse constituencies. The Courts & Issues project has funded
research to better understand the connection between judicial elections and
reproductive justice, voting rights, and environmental justice.
Table of Contents
Introductory overview of fair court issues as they
relate to environmental justice groups
4
Background/statistics on judicial elections
10
Fair courts advocacy tools
12
Talking points
12
Sample member email alert
17
Sample op-eds
20
Sample letters to the Editor
23
Fair courts resources
26
Fair Courts Toolkit: Environmental Justice
Overview
Dear Colleague,
Environmental protection efforts are directly affected by the expensive battle
between interest groups for control of courts in states where judges face election.
State court judges often decide the fate of new environmental regulations or
deregulation efforts. They decide who can sue, their available timeframe for filing
suit and how much they can recover for environmental pollution or harm.
At least $370 million has been spent on state Supreme Court elections nationally
since 2000, according to the biennial studies of judicial campaign spending and
influence, The New Politics of Judicial Elections, and research by Justice at Stake
and the Brennan Center for Justice. Since the 2010 U.S. Supreme Court ruling,
Citizens United v. FEC, the trend has moved toward special interests and political
parties outspending the judicial candidates themselves on television advertising,
a major campaign expense.
Special interest groups, including corporations, unions and lawyers, as well as
political parties, are behind much of the overall spending in the 38 states that
elect Supreme Court justices through contested partisan and nonpartisan
elections, retention votes (after initial appointment by the governor) or
hybrid systems.
Whether they contribute directly to a candidate, fund them indirectly via a political party or engage in independent spending, special interest groups want
to mold state high courts to meet their economic, social or political interests.
Easing environmental regulations and protections, as well limiting financial liability
for polluting, is one of those interests. Perhaps that helps explain the growing
presence in state judicial elections of the Charles and David Koch brothers, their
oil conglomerate Koch Industries and the interest groups and think tanks they
fund, including Americans for Prosperity. Sierra Club and Greenpeace have
dubbed the network “the Koctopus” and closely track its efforts in the legislative,
regulatory and legal arenas.
4
Overview
North Carolina provides an example of how efforts to influence state judicial
elections by special interests, including the Koch network, also affects environmental protection efforts, John Echeverria, a Vermont Law School professor, found
in his recent study, “State Judicial Elections and Environmental Law: Case Studies
of Montana, North Carolina, Washington and Wisconsin”.
After he was elected governor in 2012, former Duke Energy official Pat McCrory
appointed Art Pope as budget director (Pope resigned in late 2014). Pope is a
mill-ionaire financier who helped engineer the Republican sweep of both
houses in North Carolina, which was complete in 2012. Pope also was a founding
board member of Americans for Prosperity and started its state chapter in North
Carolina. The state soon began to ease back on environmental regulations,
Echeverria found. Led by Pope, the state also killed a decade-old program that
had provided public funding to judicial candidates to reduce their reliance on
special-interest money.
The 2014 election for several seats on the North Carolina Supreme Court provided
the chance for an all-Republican high court. Special-interest money flowed freely,
targeting the two Democrat incumbents.
The independent expenditure arm of the state Chamber of Commerce spent
$345,000 on ads connected to the race. Another Super PAC, the North Carolina
Judicial Coalition, spent $133,250. The Republican State Leadership Committee
(RSLC) spent some $1.4 million via a Super PAC called Justice for All NC, which ran
attack ads including one during the primary that accused a Democratic incumbent,
Justice Robin Hudson, of protecting child molesters.
Hudson is a steady pro-environment vote on a court with an abysmal record on
such cases, Echeverria found. That record likely was a factor for Koch Industries’
$50,000 contribution to the state chamber PAC just before it aired ads promoting
Hudson’s primary opponents.
Koch Industries is jockeying for position as the state begins permitting hydraulic
fracturing and off-shore oil drilling. The conglomerate is a major player in the
fracking industry and owns Georgia-Pacific, which produces chemicals used in
removing oil from shale.
Koch Industries contributed $179,000 to the RSLC through election day in 2014,
IRS records show. Duke Energy, with cases already before the court related to coalash contamination cleanup costs, gave the RSLC $10,000 before the primary ads
ran and $60,000 total through Election Day in 2014.
In contrast to the Tar Heel state, Washington is No. 3 on Forbes’ list of greenest
states. Its Supreme Court has built a balanced, moderate record on environmental
issues, aided in large part by the Washington Conservation Voters’ (WCV) role in
judicial elections, says Echeverria.
5
Fair Courts Toolkit: Environmental Justice
WCV succeeded with a multi-pronged approach. It banded with trial lawyers, labor
unions and pro-choice groups to form FAIRPAC (now called Citizens to Uphold the
Constitution), which financially supports like-minded court candidates. During
the 2006 state Supreme Court elections, WCV leaders made a campaign issue out
of what it said was the Building Industry Association of Washington’s agenda
to undermine state growth and land management protections.
But WCV was most effective for its centrist approach in making
political endorsements. Instead of pushing a purely pro-environment slate, it
promoted candidates based on their ability to be fair and impartial.
“WCV’s moderate message probably resonated more with voters than [a]
stridently ideological message,” Echeverria wrote in his study.
Environmental protection is at stake even if it is not a prime campaign topic.
Montana’s Constitution specifically recognizes a right to a “clean and healthful
environ-ment.” But its justices are now split along ideological lines on
environmental cases after ongoing political battles over court rulings on torts
and campaign financing, Echeverria found.
Justice Mike Wheat was a target in the Montana State Supreme Court election
in 2014. Wheat, whose campaign website touted his support for the enhanced
environmental protections in the state constitution, survived the RSLC’s $477,000
campaign to unseat him. Americans for Prosperity spent an undisclosed amount
on television and radio ads opposing Wheat.
Wheat raised $124,000, mostly from potential litigants and lawyers before his court.
The Montana Trial Lawyers’ Association, which also has an economic interest in
court rulings, spent nearly $520,000 backing Wheat in his win over conservativecause advocate Lawrence VanDyke.
Corporate interests also can use campaign spending in an effort to bar the
courthouse door to the people they harm. In 2014 the RSLC spent $294,000 trying
to defeat the only remaining Democrat judge, Patricia Joyce, on Cook County
Circuit Court, where all legal challenges to state laws and regulations originate.
Much of the spending was on the heels of a $300,000 donation to the RSLC
by Missouri billionaire and political activist Rex Sinquefield, who had suffered
recent defeats in that court on anti-tax measures he promoted. Although he was
unsuccessful, the formula can be used by deep pockets wanting to block new
state environmental regulations or litigation in many states.
With so little information available to voters about judicial candidates, a welltimed attack ad can turn an election. During the 2011-2012 elections, more than
half of the ads run by interest groups were negative, according to the biennial
study, The New Politics of Judicial Elections.
6
Overview
Even if the tactic backfires at the ballot box, attack ads can cause judges in those
states to consciously or subconsciously alter how they normally would rule. A
2013 study of criminal appeals by the Center for American Progress, "The
Impact of Judicial Campaign Spending on Criminal Defendants", showed
anti-defendant rulings rose in years with heavy court campaign ads in that
state versus years before and after.
As the number of ads increased, the effect grew on judicial decisions in those
states, the study "Skewed Justice" by Emory University law professors
Joanna Shepherd and Michael S. Kang showed. Based on research of opinions
before and after 2010, they predicted the unlimited independent spending
unleashed by Citizens United would alter the outcomes to a prosecution
ruling in 7 percent of criminal appeals. The concept can apply to any
controversy. Just as cash buys like-minded justices, attack ads can bully judges
into submission.
Maintaining fair state courts, especially where the Constitution recognizes
environmental protection rights, is crucial in today’s anti-regulatory environment.
Deep-pocket corporate spending, enhanced by Citizens United, now dominates
judicial selection. Fight back:
7
•
Push for merit-selection systems, which typically utilize judicial nominating
commissions that include lawyers and members of the public to screen
judicial applicants and provide a slate of candidates to the governor, who
then selects the judicial appointment. These judges then typically stand
for retention elections for subsequent terms.
•
Advocate public funding in contested court elections to counter special
interest cash.
•
Call for strong disclosure laws that allow voters to know who is behind
high-cost judicial races.
•
Advocate for recusal rules requiring judges to step aside in cases when
lawyers or litigants have spent substantial sums to get them elected.
•
Develop or distribute neutral voter guides with pertinent information
about candidate qualifications.
•
Alert members to fair courts issues. Push them into action when legislators
try to politicize merit selection or bully judges by threatening impeachment
over rulings.
•
Promote the connection between fair courts and environmental protection
with editorials and letters in the media.
Fair Courts Toolkit: Environmental Justice
•
Spread the message on social media using the hashtags #CourtsMatter
and #FairCourts.
Included is our fair courts toolkit with background, talking points and sample
media materials.
8
Fair Courts Toolkit: Environmental Justice
Background/Statistics
on Judicial Elections
State Supreme Court justices often are chosen in expensive battles among special
interests, fought with television ads. Each election has at least one million-dollar
candidate, funded by lawyers, corporations, special interest groups and others
with a financial or political stake in how the judge will rule. A handful of interest
groups dominate, according to the biennial studies of judicial campaign financing
and influence, The New Politics of Judicial Elections.
Judicial elections were profoundly affected by the January 2010 U.S. Supreme Court
decision, Citizens United v. FEC, which removed limits on independent campaign
spending by unions and corporations. For example, starting the next full election
cycle, interest groups and political parties began outspending court candidates on
television ads, according to research by Justice at Stake and the Brennan Center
for Justice, which produce The New Politics of Judicial Elections report with the
National Institute on Money in State Politics.
Selection methods vary for state courts of final resort:
•
Contested races: 19. Some use partisan elections and others nonpartisan
to pick Supreme Court justices. The distinction is blurred, sometimes to
the point that the parties themselves get directly involved in nonpartisan
elections. In Michigan and Ohio, the parties nominate candidates but the
party labels do not appear on the general election ballot.
•
Appointment/retention systems: 16. Often called merit selection, the
governor appoints the justice initially with input from a Judicial Nominating
Commission and sometimes with consent of legislators. The justice later
is on a ballot in an up-or-down vote for retention. Subsequent terms are
decided in retention elections.
•
Hybrid systems: 3. Illinois and Pennsylvania initially select each justice
in partisan elections, but the jurist runs solo for retention. New Mexico’s
governor appoints initially; voters soon weigh in during a contested
election. The winner runs alone for retention after that.
•
Other selection methods: 12. Judicial selection is handled by the executive
and legislative branches.
10
Background/statistics on judicial elections
In the early years of the United States, most state high-court judges received
lifetime appointments (they still do in Rhode Island, New Hampshire and
Massachusetts). By the mid-1800s, contested judicial elections were the norm.
But states struggled with the influence that money and politics had on judicial
selection and judges’ rulings. In 1940 Missouri adopted the first merit-selection
plan, with an independent committee including lawyers vetting candidates and
nominating finalists for the governor’s appointment. Judges appointed under this
system then seek new terms in retention elections. Several states later adopted
the “Missouri Plan.”
Judicial elections in the late 20th century were mostly placid. Judicial candidates
were barred from making political promises about judicial issues. When the U.S.
Supreme Court lifted those restrictions in 2002, in Republican Party of Minnesota
v. White, hardcore politics of the sort common in races for the other two branches
of government soon became a feature of judicial elections.
Election spending picked up in the 1990s, as local corporate interests funded
candidates to break the power of plaintiff trial lawyers in several states. Spending
skyrocketed after 2000, the year the U.S. Chamber of Commerce announced
it would focus on court elections. In 2014, the Republican State Leadership
Committee (RSLC) announced a Judicial Fairness Initiative program aimed
specifically against “liberal” judge candidates.
Only four states had TV ads for judicial elections in 2000. Court-campaign ads ran
in 17 states and set spending records during the 2011-2012 elections, the first full
cycle after Citizens United. In 2014 court elections, non-candidate groups funded
59 percent of TV airtime, research by Justice at Stake and the Brennan Center
shows.
Many election battles are over torts—who can sue corporations for faulty
products or other wrongs, and how much can they recover. Plaintiff trial lawyers
tend to side with Democrats, while corporate interests and their lawyers tend to
back Republicans. Unions are active in several states, often supporting Democrats.
RSLC president Matt Walter summarized the organization’s decision to focus on
state court elections in a 2014 Washington Post interview: “Republicans have had
a significant amount of success at the state level, not only being elected to offices
but implementing bold conservative solutions. […] Unfortunately that’s running
into a hard stop with judges who aren’t in touch with the public.”
In this new era of big-money fundraising and hardball election campaigns for
judicial office, judges increasingly feel pressure to become “politicians in robes.”
That is why reforms such as merit selection, neutral voter guides, public funding
and strong recusal standards are important to preserve the fair and impartial
courts upon which our democracy depends.
11
Fair Courts Toolkit: Environmental Justice
Fair Courts
Advocacy Tools
Talking points
Judicial election spending
•
The judicial branch is different than the legislative and executive. We elect
legislators and governors as advocates.
•
Judges should be neutral arbiters of the law and Constitution.
•
Supreme Court justices in 38 states are chosen in contested elections or
face voters for retention.
•
Since 2000, more than $370 million has been spent on state Supreme
Court elections, according to information compiled from The New Politics
of Judicial Elections and research by two of its authors, the Brennan Center
for Justice and Justice at Stake.
•
Most of that spending has been in the 22 states that use contested
elections or hybrid systems to select high-court judges, the New Politics
report shows.
•
Many of the general battles in state judicial elections have been over torts,
including how much a family can recover when their property is polluted
by nearby industry and when someone can sue for workplace exposure to
carcinogens.
•
About 30 percent of contributions to court candidates since 2000 came
from the business sector, according to the National Institute on Money in
State Politics. This does not include independent expenditures by business
or any spending by corporate defense lawyers, which are substantial. But it
is a starting point to understanding the degree to which corporations fund
judicial elections.
•
12
Fair Courts Advocacy Tools
Electing judges and the environment
•
Advocacy for fair and impartial courts, followed by active vigilance and
participation in judicial politics, is essential to protect decades of progress
in environmental protection law.
•
Seven of the bottom eight on Forbes’ list of environment-friendly states,
West Virginia, Alabama, Louisiana, Mississippi, Kentucky, Arkansas and
Tennessee, were battlegrounds for judicial elections since 2000.
•
Environmental issues have been a priority in Washington Supreme
Court races, according to a recent study of state judicial elections and
environmental law by John Echeverria, a Vermont Law School professor. In
2006 and 2010, the group Washington Conservation Voters helped defeat
anti-regulatory advocates backed by the Building Industry Association of
Washington.
•
The result of WCV’s vigilance in judicial politics and its fair-courts agenda
has been a balanced state Supreme Court, with no discernable patterns in
recent rulings that would indicate ideological or political bias, Echeverria
found in his case study of how judicial politics affects environmental law in
four states with contested elections for judges, "State Judicial Elections
and Environmental Law: Case Studies of Montana, North Carolina,
Washington and Wisconsin".
Special interests and judicial elections
13
•
Economic or political concerns about how judges rule on laws and
regulations, including those affecting environmental protection, sometimes
even draws special interest cash to lower-court races.
•
In October 2014, the Republican State Leadership Committee through
its state branch spent $294,000 in an unsuccessful bid to make the Cole
County (Missouri) Circuit Court bench all-Republican, state disclosure
reports show. The jurisdiction is where all legal challenges to state laws
and regulations originate.
•
Rex Sinquefield is a Missouri billionaire and free-market activist who
suffered recent defeats in that court on anti-tax measures he supported,
according to media reports.
•
Sinquefield donated $300,000 to the national RSLC in October 2014; from
Oct. 1-Nov. 4, the RSLC sent $294,000 to its Missouri branch, IRS records
show. The RSLC Missouri spent money in other races but mostly focused
on the trial court election.
Fair Courts Toolkit: Environmental Justice
•
Recent elections in other trial-level courts in states, deemed “Judicial
Hellholes” on torts, also have been targeted by business interests or
activists.
Citizens United and campaigning in court elections
•
The January 2010 ruling by the U.S. Supreme Court, Citizens United v. FEC,
profoundly affected judicial elections. For the first time, non-candidate
groups including political parties and special interest groups, outspent the
judicial candidates nationally on television ads, according to the biennial
study, The New Politics of Judicial Elections.
•
The pattern repeated in 2014, research by watchdog groups (and New
Politics co-authors) Justice at Stake and the Brennan Center for Justice
found.
•
Super PACs, an indirect byproduct of the Citizens United decision, have
become effective tools for bundling money from different interests.
North Carolina
•
In North Carolina in 2014, Kansas-based Koch Industries and tobacco
giant Reynolds American made substantial contributions to the state
Chamber of Commerce political action committee before it ran ads in
the state Supreme Court elections in 2014.
•
North Carolina-based Duke Energy and Reynolds American made
substantial contributions to the North Carolina Judicial Coalition before
that PAC ran ads in the court races, state financial disclosures show.
•
Duke Energy and Reynolds American are among the North Carolina-based
corporations that contributed to the national Republican State Leadership
Committee weeks before it funded ads run by the Super PAC Justice for
All NC in the 2014 state Supreme Court primary and general election, IRS
records show.
•
The main target of the independent expenditures was Justice Robin
Hudson, a reliable vote on environment cases on a court with an abysmal
record in this area, John Echeverria, a Vermont Law School professor,
found. Republicans unsuccessfully sought a clean sweep but ended with a
4-3 advantage on the court.
•
A local lobbyist for Koch Industries, Halliburton and others in the oil
industry played a substantial role in developing legislation and regulations
14
Fair Courts Advocacy Tools
in North Carolina for hydraulic fracking, according to media reports.
Fracking, set to begin in 2015, is likely to result in state litigation that
winds up before the state Supreme Court.
Koch brothers, Americans for Prosperity and courts
•
Another issue in judicial elections is politicking by 501(c)(4) social welfare
groups, which are not required to disclose their donors. One that is
increasingly involved in judicial elections is Americans for Prosperity, a
spinoff of Citizens for a Sound Economy, founded by the billionaires
Charles and David Koch, majority owners in Koch Industries.
•
Americans for Prosperity, which promotes limited government and school
vouchers in North Carolina, spent $225,000 on the 2012 state Supreme
Court race and was accused of intentionally sending mailers in 2014 with
misleading voter information.
•
In Montana, Americans for Prosperity campaigned to defeat incumbent
Supreme Court Justice Mike Wheat in 2014. (AFP did not disclose the
amount it spent.)
•
Wheat’s campaign touted his commitment to guarantee a “clean and
healthful environment” in the Montana Constitution, a case study by
John Echeverria, Vermont Law School professor, showed. Wheat won a
new eight-year term.
•
Koch Industries has compiled a horrible environmental record in several
states that have been judicial battlegrounds, including Michigan, Alabama,
Louisiana, Illinois, Arkansas and Florida, according to Greenpeace.
•
Koch’s environmental issues in Texas, another judicial battleground state,
are numerous. For example, a state-court jury levied a $296 million verdict
in 1999 against Koch Industries in a lawsuit over the deaths of two Texan
teens burned alive in a fire due to a leaky butane pipe. Koch later settled
for an undisclosed amount.
Attack ads and justice
15
•
The trend post-Citizens United is non-candidate groups starting to
outspend court hopefuls on television ads. In the 2011-2012 judicial
elections more than half of ads run by outside groups were negative in
tone, The New Politics of Judicial Elections found.
•
Attack ads often prey on public fears about crime, even when the motivation
behind those paying for the ads is economic or political.
Fair Courts Toolkit: Environmental Justice
•
Because little information is available about judicial candidates, last-minute
attack ads can sway the outcome of a judicial election. Citizens United has
increased the likelihood of well-financed last-minute campaigns against
judges over specific rulings.
•
Even if the tactic fails at the ballot, attack ads still can consciously or
subconsciously affect how elected judges rule, studies by the Center for
American Progress and Emory University law professors Joanna Shepherd
and Michael S. Kang show.
•
Fear that a specific ruling will spark attack ads makes elected judges
sometimes change the way they normally would rule, the studies indicate.
•
The studies examined criminal appeals but the findings can be applied to
any ruling that angers deep-pocket interests.
•
Rulings against defendants rose significantly in states during years with
large amounts of judicial campaign-ad spending, only to fall again when the
ads ended, according to a 2013 study by the Center for American Progress,
"The Impact of Judicial Campaign Spending on Criminal Defendants". It
examined criminal appeals in seven states with hotly contested court
elections from 2000-2007.
•
The likelihood of the court ruling against criminal defendants increased
with each increase in the number of judicial campaign ads in that state,
according to "Skewed Justice", a 2014 study for the American
Constitution Society by Shepherd and Kang.
•
Those findings correlate with a study by the same duo of judicial elections
in the late 1990s, as well as the Center for American Progress study.
•
In states with 10,000 or more ads, justices were likely to rule against
criminal defendants during elections years in 7 percent more cases versus
non-election years, the "Skewed Justice" study found.
•
Ohio (2000, 2002, 2004), Alabama (2006, 2008), Wisconsin (2008, 2011) and
Michigan (2010, 2012) fall into the 10,000-plus ad category, according to The
New Politics of Judicial Elections.
•
The likelihood of a judge ruling in favor of defendants was reduced by a
range of 5 percent to 7 percent in states with 6,000 (5.3%) to 9,000 (6.8%)
judicial campaign ads, the "Skewed Justice" study found.
•
Alabama (2004, 2010, 2012), Ohio (2010), Pennsylvania (2007), Michigan
(2008), Wisconsin (2007), West Virginia (2008) and Illinois (2004) fall within
that category, according to The New Politics of Judicial Elections.
16
Fair Courts Advocacy Tools
•
"Skewed Justice" studied the effects of Citizens United by examining
rulings in all 23 states in which bans on corporate and/or union campaign
spending were lifted by Citizens United, as well as rulings in nine other
states. Based on the research, Shepherd and Kang predicted that attack
ads spawned by Citizens United will cause elected Supreme Court
justices to change rulings in 7 out of 100 criminal cases.
Sample member email alert
Dear members,
In 1971, before his appointment to the U.S. Supreme Court, Lewis F. Powell Jr. wrote
a then-secret memo to the U.S. Chamber of Commerce that is playing out in many
ways these days.
To create a more favorable political and regulatory climate for Chamber members,
Powell wrote, “the judiciary may be the most important instrument for social,
economic and political change.” For nearly two decades, special interests have
been targeting court elections in several states in an effort to control how the
industry is regulated and minimize the costs of their pollution and other torts.
Maintaining fair courts is crucial for environmental advocates. Many of the 38
states where voters elect or retain judges have been buffeted by special interest
cash, mainly in battles pitting corporations and their lawyers against the plaintiff
trial lawyers who sue them. Environmental protection is a subtext in this tort war,
especially in states where the Constitution recognizes the right to a clean and
healthy environment.
Seven of the lowest eight on Forbes’ ranking of environment-friendly states—West
Virginia, Alabama, Louisiana, Mississippi, Kentucky, Arkansas and Tennessee—
were battlegrounds in one or more judicial elections since 2000.
In January 2010 the U.S. Supreme Court issued a ruling that poses a huge threat
to judicial independence and the rule of law, Citizens United v. FEC. With no limits
on corporate independent campaign expenditures, interest groups have started
outspending the court candidates themselves.
Koch Industries and Americans for Prosperity have become active in several state
judicial races. Since 2012, Koch Industries and/or Americans for Prosperity made
contributions or independent expenditures on court races in North Carolina,
Montana, Texas, Mississippi, Louisiana and Tennessee.
17
Fair Courts Toolkit: Environmental Justice
Court elections recently became a target for the Republican State Leadership
Committee, which helped fund several statehouse transitions in 2010 and 2012.
In 2014 the RSLC spent $3.4 million on Supreme Court races in North Carolina,
Montana, Missouri, Illinois and Tennessee, according to research by the watchdog
groups Justice at Stake and the Brennan Center for Justice.
In Missouri, the RSLC spent $294,000 during the 2014 general election trying
to pack the trial-court bench in the jurisdiction where all lawsuits against state
regulations and laws originate. That month the RSLC got $300,000 from a
billionaire and anti-tax activist, Rex Sinquefield, who had lost cases in the court.
“Meet liberal Judge Pat Joyce,” said an ad targeting the incumbent. “Radical
environmentalists think Joyce is so groovy.”
Connect the dots among environmental protection, political and social changes,
campaign finance rules, judicial politics and corporate interests like the Koch
brothers and their political network. The picture would look like North Carolina.
Its transition from purple state to red was completed in 2012, when former Duke
Energy executive Pat McCrory was elected governor. For state budget director he
appointed Art Pope, a Republican candidate financier and founding board member of
Americans for Prosperity and its state chapter. (Pope served until late 2014.)
McCrory recently fast-tracked fracking after a lobbyist for Koch Industries,
Halliburton and others helped write laws and regulations using models from the
American Legislative Exchange Council. Koch Industries contributed $50,000 to
a chamber organization that ran television ads touting two primary challengers to
Justice Robin Hudson, a reliable pro-environment vote on a court with a terrible
record on such cases. Americans for Prosperity was accused of intentionally
mailing misleading voter guides that fall.
Duke Energy, which has litigation before the court that will affect how much it
pays to clean up coal-ash contamination, was one of several state corporations
that contributed to the RSLC as it spent some $1.4 million trying to
unseat Hudson. The RSLC money went to a Super PAC, Justice for All NC, and to
ads by the PAC that included a last-minute pre-primary attack accusing Hudson
of siding with child molesters. Duke Energy also contributed to another state
PAC that ran ads in the state Supreme Court race.
The judiciary may be the most important instrument protecting us from these
social, economic and political blows to our environment. We have been active
in legislative and executive branch politics. We need to step up efforts in state
judicial elections.
•
Push for merit-selection systems, which typically utilize judicial nominating
commissions that include lawyers and members of the public to screen
judicial applicants and provide a slate of candidates to the governor, who
18
Fair Courts Advocacy Tools
then selects the judicial appointment. These judges then typically stand
for retention elections for subsequent terms.
•
Advocate public funding in contested court elections to counter special
interest cash.
•
Call for strong disclosure laws that allow voters to know who is behind
high-cost judicial races.
•
Advocate for recusal rules requiring judges to step aside in cases when
lawyers or litigants have spent substantial sums to get them elected.
•
Develop or distribute neutral voter guides with pertinent information
about candidate qualifications.
•
Alert members to fair courts issues. Push them into action when legislators
try to politicize merit selection or threaten judges with impeachment over
rulings.
•
Promote the connection between fair courts and environmental protection
with editorials and letters in the media.
•
Spread the message on social media using the hashtags #CourtsMatter
and #FairCourts.
We have seen what happens when polluters operate only with regard to the
corporate bottom line, not the greater good. That’s why we have
environmental protections, and in today’s political atmosphere, we rely more
than ever on elected state judges to enforce those protections. It’s vital those
judges be fair and impartial.
Included is our fair courts tool kit with background, talking points and sample
media materials.
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Fair Courts Toolkit: Environmental Justice
Sample op-eds
Sample 1
The environment in which we live work and play is threatened by recent campaign
financing decisions by the U.S. Supreme Court. They have helped put political
power in the hands of a moneyed few who are dedicated to dismantling corporate
regulations that harm their financial bottom-line.
Rulings like Citizens United v. FEC in January 2010 opened the floodgates for
election spending, allowing deep-pocket interests to play an outsized role in
determining who makes law and sets policies affecting the environment and other
crucial matters.
Citizens United and related rulings have had a terrible effect on how we elect the
judges who determine the constitutionality of these laws and regulations.
Many states already were plagued by special interest cash in court elections,
but the post-Citizens United flood of independent expenditures by oftenhidden donors has allowed non-candidate groups to dominate television
advertising in many of the 38 states where voters chose or retain judges.
By controlling who has the money to mount an effective campaign, the moneyed few
often determine who dispenses our justice. Perhaps that is why one of the nation’s
top polluters, Koch Industries, and its political arm Americans for Prosperity are
increasingly involved in court elections.
Koch Industries and Americans for Prosperity provided economic support to
challenge pro-environment Supreme Court justices in North Carolina and
Montana in 2014. Americans for Prosperity will not disclose how much it also spent
on radio ads trying to unseat three justices seeking retention in Tennessee in 2014.
Koch Industries and Americans for Prosperity spent money in 2012 on judicial
races in Texas, North Carolina, Mississippi, Louisiana and Florida—all states in
which Koch Industries has an economic interest. In North Carolina, Koch
Industries is positioning for the state to permit fracking for natural gas deposits.
The goal is to pack courts with justices who will rule their way on environmental
and other regulations, and mitigate the cost if they are sued or found liable
for harming individuals or the environment.
Courts exist to make lawmakers; corporations and people follow the rules.
Law and order depends on an independent judiciary free from control or
manipulation.
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Fair Courts Advocacy Tools
If we care about environmental protection, we need to fight to reduce the
effect of money and influence on judicial decision-making. Join efforts to pass
a Constitutional amendment to overturn Citizens United. Push for public
financing that reduces the effect of special interest money on elections.
Promote and defend merit selection for judges. Above all, stay informed about
our own courts and vote for fair-minded judges.
Sample 2
Billionaire brothers Charles and David Koch run one of the nation’s biggest
corporate polluters, Koch Industries. The brothers also are major players in federal
and state politics, part of their stated goal to build a deregulated libertarian society
where corporations are free to act—and pollute—as they see fit.
With a personal fortune that ranks them among the richest Americans, Charles
and David Koch have overwhelmed elections with millions in cash to back likeminded candidates and oppose those who favor environmental and government
regulation. They have built an effective national network that includes political
action committees, think tanks and Tea Party activists.
Shifting political power in several states has led lawmakers to weaken environmental regulations, among other radical changes. Now special interests are
targeting several state courts that will decide if these new laws are constitutional.
Citizens United v. FEC, a U.S. Supreme Court ruling in 2010, may have provided
the boost they needed in the 38 states where voters choose or retain
Supreme Court justices.
By removing limits on how much corporations and unions can spend independently to elect candidates, Citizens United has allowed deep-pocket interests
to dominate the discourse in court races. In the two full election cycles since
the January 2010 decision, groups with an economic or political stake in state court
rulings began outspending the judicial candidates overall on television advertising.
Too often, these economically and politically motived groups run attack ads that
use crime to scare voters. Even if it fails at the ballot, recent studies have shown
that the fear of provoking an attack ad can cause elected judges to change how
they rule on some controversial cases.
Koch Industries and the Koch brothers’ political arm, Americans for Prosperity,
have gotten involved in Supreme Court races in six states since Citizens United.
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Fair Courts Toolkit: Environmental Justice
In 2014, Koch Industries contributed $50,000 to a PAC that ran ads promoting
challengers to Justice Robin Hudson, a steady pro-environment vote on the North
Carolina Supreme Court. Koch has an interest in the state’s new
regulations allowing hydraulic fracturing of shale for natural gas, or fracking,
likely to be a major source of litigation in state courts.
Americans for Prosperity spent an undisclosed amount in 2014 to run radio ads
opposing the retention of three justices in Tennessee, and in an effort to unseat
Montana Supreme Court Justice Mike Wheat. With the level of dark money that
now pervades politics, determining exactly how much the Koch brothers spend on
state judicial elections is impossible.
From an environmentalist viewpoint, it is scary to think that the moneyed few can
play such a crucial role in electing those who make laws and approve regulations.
But that prospect is even scarier in the judicial system.
We elect presidents, governors and legislators as advocates. But in our government,
judges are supposed to be neutral arbiters of the law and Constitution, not swayed
or bullied by special interests.
Advocates for protecting our environment should join the call for fair courts. We
must cut special influence spending. Join the movement for a constitutional
amendment to overturn Citizens United.
In states with contested judicial elections, we must push to adopt public funding.
Switching from contested elections to the appointment-retention system
known as merit selection also has been shown to reduce the overall effects of
interest groups and cash on judicial selection and decision-making.
Above all, we need to be informed voters. Know our court candidates and who is
financially backing them so we can effectively use our right to vote to protect
the world around us.
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Fair Courts Advocacy Tools
Sample letters to the Editor
To the Editor:
The U.S. Supreme Court ruling in January 2010, Citizens United v. FEC, may turn
into an environmental disaster.
By allowing unlimited corporate independent campaign expenditures, it has
concentrated their ability to manipulate who sits on high courts in the 38 states
that elect their top jurists.
In some of those states, including Montana, the state constitution recognizes the
right to a clean environment. But often, the top spenders in court elections believe
the environment should be exploited for profit, not protected for the good of all.
In legislative and executive-branch elections, politics are all about the golden
rule: those with the gold rule, unless you can turn out the people.
But judges should be beholden to the law and the Constitution, not special
interests and their cash. Unfortunately, after Citizens United, special interests and
political parties for the first time started outspending court candidates themselves
on all-important TV advertising.
We need to repeal Citizens United by constitutional amendment. Until then, public
funding for contested elections or a switch to appointment-retention merit
systems will reduce how cash influences justice.
To the Editor:
An elected Ohio Supreme Court justice once said, “I never felt so much like a
hooker down by the bus station […] as I did in a judicial race. Everyone interested
in contributing has very specific interests.”
Corporate polluters today cruise state Supreme Court elections, looking to spend
the extra money freed by the U.S. Supreme Court’s Citizens United decision in 2010
that removed limits on corporate independent expenditures in elections.
Having had their way in reshaping the legislative and executive branches in several
states, producing anti-environmental laws along the way, they now turn to the
courts that will rule on those laws. In the two-year election cycles since Citizens
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Fair Courts Toolkit: Environmental Justice
United, special interests for the first time started outspending court candidates
overall on television ads, the bread-and-butter of campaigning.
Join the effort to repeal Citizens United (democracyforus.org). To bring judicial
selection back to the people, push for public funding in court elections and merit
selection for judges.
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Fair Courts Toolkit: Environmental Justice
Fair Courts Resources
Information about state judicial selection: http://judicialselection.us
Information about specific state judicial elections: http://judgepedia.org
Information about Citizens United: http://www.oyez.org/cases/2000-2009/2008/
2008_08_205
Fair courts groups
•
Justice at Stake http://www.justiceatstake.org
•
Justice at Stake’s daily blog summarizing news about fair courts is Gavel
Grab: http://www.gavelgrab.org
•
Brennan Center for Justice: http://www.brennancenter.org
•
Brennan Center’s Fair Courts resource page: http://www.brennancenter.
org/issues/fair-courts
•
Brennan Center’s Buying Time page, tracking Supreme Court TV
advertisements: http://brennancenter.org/analysis/buying-time
•
National Institute on Money in State Politics: http://
www.followthemoney.org
The above organizations jointly issue biennial reports on judicial campaign finance
and influence, The New Politics of Judicial Elections: http://www.
justiceatstake.org/resources/the_new_politics_of_judicial_elections.cfm or
http://brennancenter.org/analysis/new-politics-judicial-elections-all-reports
Other resources
•
“State Judicial Elections and Environmental Law: Case Studies of Montana,
North Carolina, Washington and Wisconsin,” John Echeverria study on
judicial elections and environmental law:
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Fair Courts Resources
http://vjel.vermontlaw.edu/files/2015/03/Echeverria.pdf
•
Center for American Progress: Billy Corriher researches state courts
and the influence of political contributions on judges: https://
www.americanprogress.org/projects/legal-progress/view
•
“The Kingpins of Carbon and Their War on Democracy”, Greenpeace:
http://www.greenpeace.org/usa/Global/usa/planet3/PDFs/Kingpins-ofCarbon.pdf
•
Powell Memo: http://www.greenpeace.org/usa/the-lewis-powell-memocorporate-blueprint-to-dominate-democracy/
•
Effects of attack ads on judicial decision-making:
> American Constitution Society, "Skewed Justice": http://skewedjustice.org
> Center for American Progress study, “The Impact of Judicial Campaign
Spending on Criminal Defendants”: https://www.americanprogress.org/
issues/civil-liberties/report/2013/10/28/78134/criminals-and-campaigncash/
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