Outside spending transforms Supreme Court election in North Carolina

New York Times News ServiceMay 6, 2014 

— The ad first appeared on television the Friday before last, a black-and-white spot charging that Justice Robin Hudson coddled child molesters and “sided with the predators” in a North Carolina Supreme Court dissent. It has run constantly since.

As notable as the ad’s content and frequency, though, is its source. It was created and aired not by one of Hudson’s two opponents in Tuesday’s primary election, but by a group that had just received $650,000 from the Republican State Leadership Committee in Washington, which pools donations from corporations and individuals to promote conservatives in state politics and is now broadening its scope to target judicial races.

The sums have been unusual for such elections. The primary race for Hudson’s Supreme Court seat alone has drawn more than $1 million - the bulk of it by independent groups including the Republican committee and an arm of the state Chamber of Commerce, which has spent $250,000 to promote both of her opponents with money from companies including Reynolds American, Blue Cross Blue Shield and Koch Industries.

The costly and fierce primary shows how the revolution in financing political campaigns, with the surging role of “super PACs” and other groups financed by corporations, unions and other interests, has entered what was the quieter arena of judicial elections.

In formal recognition of what it sees as new opportunities, last week the Republican State Leadership Committee, which had focused on state legislatures and governors’ races, announced a Judicial Fairness Initiative. The grant program will spend millions to “focus on educating voters to better understand the ideology of candidates up for judicial branch elections,” said the committee’s president, Matt Walter.

Alicia Bannon, a lawyer with the liberal Brennan Center for Justice at New York University, said the Republican initiative was hardly isolated. “We’ve seen a flood of special interest money pouring into state Supreme Court races,” she said. “It often goes toward ads attacking judges’ criminal records, even when the interest group is focused on business interests or other unrelated issues.”

Until a few months ago, Hudson expected to face a conservative opponent, Superior Court Judge Eric L. Levinson, in the November election.

Then at the end of February, a second conservative candidate, Jeanette Doran, a state official and former head of a research institute without judicial experience, entered the race. This forced a primary because only two candidates, in an ostensibly nonpartisan race, can go on to compete in November.

Chris Kromm, executive director of the Institute for Southern Studies in Durham, N.C., which is tracking spending and television ads, said, “The sitting justice could be primaried out because of this avalanche of independent spending on behalf of the two conservative candidates.”

Hudson has raised a few hundred thousand dollars and spent $86,000 fielding a defensive ad. She has been spending long days attending breakfasts and barbecue benefits across the state’s 100 counties, seeking to build her name recognition and fire up supporters to vote in a primary where they may not see much at stake.

“Oh, my God, give me a break,” she recalled thinking when she first saw the spot attacking her. “It’s outrageous and false, and they sure know how to distort a photo to make you look terrible.”

Levinson said in a statement commenting on the attack ad that is presumably helping him, “?I will always run a positive effort, and I was surprised by the purchase of media by outside groups.” Levinson’s political consultant, Paul Shumaker, said, “It’s not our ad and we’re talking about free speech.”

But he added, “The independent groups have come in and brought more attention to the judicial races than all the candidates put together.”

Judges on higher courts are elected rather than appointed in 22 states, and in 16 more they must face retention elections at some point after their selection, according to Justice at Stake, an advocacy group in Washington. Corporations and political parties - and trial lawyers and unions - seek ideologically compatible state judges, legal experts say, because their rulings can affect redistricting and laws on such key issues as liability, medical malpractice and workers’ compensation. The growing influx of interest group spending is transforming judicial elections and raising concerns about conflicts of interest. In 2012, $30 million was spent nationwide on television advertising for state court races, often involving attack ads, according to a report last fall by the Brennan Center, Justice at Stake and the National Institute on Money in State Politics.

“Judicial races are getting swamped in this tidal wave of political money,” said Bert Brandenburg, a former Justice Department official who is the executive director of Justice at Stake. “The fear is that the judiciary will attract more people who see the courts as just one more step in their political careers.”

The Republican state committee has already used North Carolina as a test case. In 2012, it financed ads extolling a sitting Supreme Court justice, Paul Newby, known to be a Republican, to help him beat back a challenge from Sam “Jimmy” Ervin IV, an appeals court judge and grandson of former Senator Sam J. Ervin Jr., who died in 1985.

Last week, the Republican committee gave an additional $250,000, bringing the total in April to $900,000, to a group called Justice for All NC, which has a mailbox in a UPS store listed for a headquarters and seems to be little more than a funnel for outside money.

In the group’s ad, Hudson is attacked for arguing, along with two other justices, that retroactively requiring certain sex offenders to wear ankle bracelets was unconstitutional and also unlikely to be effective. A group of six former justices of the North Carolina Supreme Court called the ad “disgusting.”

Jay Connaughton, a consultant to Justice for All, defended the ad as accurate. “Justice Hudson put the privacy of convicted sex offenders ahead of the right of our elected leaders to protect us from these heinous criminals,” he said in an email.

Four North Carolina Supreme Court seats are up for election this fall - the other three have only two contenders and did not require primaries - and depending on whether Hudson survives, two or three of the races this fall are expected to attract similar outside money.

The explosion in outside funding is the latest development in a winding path for North Carolina’s judicial elections. In 2002, in an effort to curb spending and level the playing field, North Carolina, then under Democratic control, established public financing for races. It also said the races must be nonpartisan.

But some Republicans, including Art Pope, a prominent donor and, most recently, state budget director, opposed public financing. It was repealed last year, even as the limit for individual contributions was raised to $5,000. In any case, the independent expenditures have now outrun those by the candidates themselves.

At her home in suburban Raleigh on Sunday, Hudson lamented, “The skills it takes to be a good candidate have nothing to do with what it takes to be a good appellate judge.”

But she would not campaign on Monday or Primary Day: The Supreme Court is in session.

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