TV attack ads sway judges' rulings, study suggests

CHARLESTON – Campaign attack ads accusing judicial figures of being soft on crime influence their decisions, according to new research sponsored by the American Constitution Society for Law and Policy.

ACS released the findings Wednesday in a report entitled “Skewed Justice: Citizens United, Television Advertising, and State Supreme Court Justices’ Decisions in Criminal Cases.”

Fueled by the 2010 Citizens United Supreme Court decision allowing corporations and unions to make unlimited independent political expenditures, TV attack ads in state supreme court elections has made justices, including those in West Virginia, less likely to rule in favor of defendants in criminal appeals.

“Money is indeed influencing the way justices are ruling,” said Jeremy Leaming, ACS spokesman. “Courts should be impervious to the political whims of the electorate.”

The report is a compilation of data from more than 3,000 criminal appeals decided in state supreme courts in 32 states from 2008 to 2013.

Leaming said the research shows the more attack ads aired during state supreme court judicial elections, the less likely justices are to rule in favor of criminal defendants.

For example, prior to the Citizens United ruling, West Virginia justices voted in favor of criminal defendants 25.2 percent of the time. After the removal of the ban, justices voted in favor of criminal defendants only 16.6 percent of the time, according to the report.

The West Virginia Supreme Court of Appeals did not respond to requests for comment.

The report further states empirical evidence indicates money often manages to buy judicial elections, with outside groups routinely spending millions to elect candidates who will rule as they prefer on priority issues.

Perhaps the most highly publicized incident of corporate money in state supreme court races transpired in West Virginia.

In 2004, Don Blankenship, the former CEO of Massey Energy, contributed $3 million to the "And For The Sake of the Kids" political action committee, which campaigned against sitting state Supreme Court Justice Warren McGraw. One television ad, in particular, received a lot of attention for calling McGraw out for a ruling that allowed a convicted child rapist to work in a West Virginia school.

While the PAC didn't campaign for McGraw's opponent Brent Benjamin, Benjamin did defeat McGraw in the general election.

The research also found that beginning in the 1990s, judicial elections have become more competitive and campaign spending has skyrocketed. Judges, who almost never lost their re-election bids during the 1980s, now find their loss rates higher than those of congressional and state legislative incumbents.

Dr. Joanna Shepherd and Dr. Michael S. Kang authored the report.

Founded in 2001, ACS is a legal organization composed of a network of lawyers, law students, scholars, judges and policymakers.