Judicial elections and the ways they are financially supported tend not to get the same level of attention as races for seats like the senate or governor's office, but that is changing.
Joseph Ross, who earned his doctoral degree from the University of Arizona's School of Government and Public Policy in May, said part of the tug comes from the increased use of "independent expenditures," funding provided by interest groups in an effort to influence election outcomes.
The move by policy groups and government agencies in paying closer attention to such funding is manifold: Independent expenditures are not restricted in the same way as other dollars going to other campaigns and yet often are used to sway judicial elections.
"Independent expenditures are probably rising in all elections but may be particularly problematic in judicial elections," said Ross, currently an adjunct instructor in the UA's School of Government and Public Policy.
Wondering why individual groups choose to support judicial candidates at all, Ross devoted his dissertation work to investigating the influential nature of independent expenditures in states with elected supreme courts.
In his investigation of elections in 22 states and case study of four states, Ross found that independent groups tend to pay for advertisements in print, radio and televised form, or to rely on direct mail. Direct mail tends to be the most popular tactic utilized.
Additionally, Ross found that the use of independent expenditures was high in states like Wisconsin and Washington, both of which have strict campaign finance laws. However, states with fewer restrictions, like Alabama, had lower levels of such spending.
His study proved to be compelling for a number of reasons: Judges are expected to be impartial and are held to a different standard than are other elected officials, such as state representatives and even the U.S. president. In fact, judges are generally not viewed as politicians actively engaged in serving as an influential force when it comes to law, he said.
"There are codes of conduct that we hold judges to. With judges, we expect them to be different," said Ross, who is in the process of developing a manuscript for a book.
But independent expenditures can directly "change the tone of an election" without judicial candidates being in any way involved, he added.
Thus, reasons why individual groups choose to support judicial candidates is largely influenced by regulations placed on the candidates themselves, Ross found. He also found that contribution limits directly caused money to be shifted from the campaigns themselves to independent expenditures.
In effect, "they are doing the dirty work for the judges," he said of the interest groups, noting that, in many cases, the groups tend to run "negative" campaigns that are framed in an "attacking" way.
The New York University School of Law's Brennan Center for Justice reports that 39 states still maintain some form of electoral process for judges.
Last year, the center released a report, "The New Politics of Judicial Elections, 2000-2009," detailing a decade of trends in judicial elections.
The report noted: "For more than a decade, partisans and special interests of all stripes have been growing more organized in their efforts to use elections to tilt the scales of justice their way. Many Americans have come to fear that justice is for sale."
Among the points highlighted in the report, campaign fundraising among state supreme court candidates more than doubled in a decade-by-decade period with the amount being nearly $207 million during the 2000-09 period. The report noted that special interest groups, or "super spenders" as the report notes, "played a central role in this surge."
Though states have for the last several decades begun moving away from judicial elections, they are still practiced in numerous states, which is another reason why they require some scrutiny, Ross said.
Indeed, some analysts expect that the use of such expenditures will increase in forthcoming elections and also because of the varying range of restrictions placed on judges up for election, such as the inability to accept donations or participate in campaigning.
"We keep putting restrictions on them, but we don't look to see if they have an effect," Ross said.
In his investigation, Ross found that the use of independent expenditures is concentrated to a select number of states – generally those with stringent campaign finance restrictions.
Ross found both benefits and challenges with regard to independent expenditures.
From the funder's perspective, it enables the option to directly control messaging. However, for candidates, this can prove to be problematic.
For Ross, his research is meant to draw attention to some of the more complex factors involved campaign spending.
"My argument is that it is not as simple as putting restrictions on spending," he said. "Reforms can restructure the flow of money in politics.”