Court races may lead to funding reform

OLYMPIA – Supreme Court races in Washington state are nonpartisan, but you wouldn’t have been able to tell that by the record amount of money spent in campaigns that looked very political.

In the end, the court’s three incumbents were re-elected. But the legacy of this year’s campaigns may not yet be written.

On Tuesday, Justice Susan Owens survived a tough race against a conservative lawmaker who drew heavy support from the business community. Chief Justice Gerry Alexander and Justice Tom Chambers also drew challengers from the right, but received more than 50 percent of the vote in the September primary and appeared alone on the general ticket.

More than $4 million was spent by the candidates and interest groups on the three races, nearly triple the $1.4 million record set in 2004.

“The sheer amount of money that was spent in the campaigns was markedly different than in years past,” said former Justice Phil Talmadge, who served on the court from 1995 to 2001 and spent just $125,000 on his campaign. “The nasty tone of the campaigns had all the earmarks of traditional partisan mudslinging.”

Gov. Chris Gregoire and campaign finance watchdogs are worried about the increasing amount of money spent in Supreme Court races, and regulators might ask the Legislature to stem the large amounts of money flowing into political action committees.

“I want candidates out there on their own merit, their own experience, their own credentials, running for office and allowing voters to make informed decisions, not having PACs fight with each other,” Gregoire said recently.

After the September primary – in which $2.1 million was spent on the Supreme Court races – Gregoire said that she was open to the idea of public financing for judicial races.

A handful of states, including Arizona, have public financing for statewide and legislative races. North Carolina is the only state in the country that has public financing for appellate judicial candidates – a system put in place two years ago after former Chief Justice Henry Frye spent a record $907,000 in a failed re-election bid in 2000.

But in Washington state – which already has nonpartisan court races and campaign finance limits for judicial candidates – critics are most worried about the amount spent by PACs.

While direct donations to campaigns are limited, there’s really no limit to independent spending to support or oppose candidates, so long as it isn’t coordinated with the candidate’s campaign. So, there’s no limit on how much money PACs could use to air attack TV ads or send out mailers to voters on behalf of the candidates. And that’s not likely to change.

“In American election law, money has been deemed speech,” said Jesse Rutledge, spokesman for Washington, D.C.-based Justice At Stake, a nonpartisan watchdog group. “Until the U.S. Supreme Court revisits this issue, we can’t put limits on how much an individual can spend in the political world. All we can do is offer incentives not to behave that way, and to find ways to deter third parties from completely dominating elections.”

Early in the campaigns, third-party groups lined up behind the candidates. The powerful Building Industry Association of Washington backed Republican state Sen. Stephen Johnson, who ran against Owens, and attorney John Groen, who took on Alexander. Citizens to Uphold the Constitution – a coalition of groups that included tribes, labor unions and trial lawyers – backed Owens and Alexander. Chambers was endorsed by both the BIAW and Citizens to Uphold the Constitution.

About $2.6 million was spent by several outside groups on the races, with the BIAW spending more than any other group.

BIAW officials have argued that groups like themselves have no greater power over the election outcome just because of the amount of money that they spend, and have noted that despite all the money they spent, neither Groen nor Johnson were successful in their bids for the court.

But the state Public Disclosure Commission is weighing whether to ask the Legislature to limit the amount of money that the unions and other organizations spend on elections.

At a recent meeting, PDC staffers outlined for the commissioners current law in Washington state, and how limits on contributions here compared with nine other states, including Alaska, where corporations or unions can’t make contributions to, or independent expenditures to support or oppose, candidates.

The commission is expected to make a decision Nov. 30.

Talmadge said that public financing is one way to go but also said that the court itself can also address campaign issues in its Code of Judicial Conduct. He added that significant work needs to be done in the coming months “to make sure the elections process doesn’t so damage the judiciary that credibility with the public is harmed.”