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Pennsylvania Supreme Court race could attract millions from outside funders

A Wisconsin ad said a Supreme Court hopeful had protected a priest accused of sex abuse. An Alabama mailing portrayed a high-court candidate there as a marionette with his strings pulled by President Obama, dressed like Marlon Brando in The Godfather.

Among those vying for a spot on the Pa. Supreme Court are (from left) David Wecht, Kevin Dougherty and Judith Olson.
Among those vying for a spot on the Pa. Supreme Court are (from left) David Wecht, Kevin Dougherty and Judith Olson.Read more

A Wisconsin ad said a Supreme Court hopeful had protected a priest accused of sex abuse.

An Alabama mailing portrayed a high-court candidate there as a marionette with his strings pulled by President Obama, dressed like Marlon Brando in The Godfather.

A Michigan TV ad asked "How could you?" because a Supreme Court candidate once aided a Guantanamo Bay detainee's defense.

Could these be a preview of Pennsylvania's Supreme Court race?

Each attack was funded not by a rival candidate, but by outside conservative and progressive groups that increasingly see judicial races as a fertile ideological battleground. Such independent spending in high court races nationwide soared almost tenfold in 10 years - to $24 million in 2011-12 - and the resulting ads have a tendency to get ugly.

As the only state to host a Supreme Court race coming up - an unprecedented contest for three of the seven seats - Pennsylvania now gets the spotlight. Once the summer lull ends, experts say, tens of millions of dollars are likely to flow into the state and onto its airwaves to promote, or attack, the candidates.

"I think the gloves may be off," said Liz Seaton, deputy executive director of Justice at Stake, a nonpartisan group that monitors spending in judicial races nationwide.

The race has already been one of the state's most expensive. The 12 primary candidates raised about $5 million and spent about $2.4 million on broadcast television ads. The three Republicans and three Democrats who won last month don't dispute their inability to control the influx of independent money that could determine their fate.

Democrat David Wecht, a Superior Court judge, said it was not his place to tell supporters how to use their money, but added he was concerned about independent spending. "I don't know what sense it makes for me to bemoan it; it's just a reality," he said.

"We have no control of what other people do," said Judith Olson, a Superior Court judge and the top Republican vote-getter in the primary.

A spokesman for Kevin Dougherty, the Philadelphia judge and Democrat who won a ballot spot, said he plans to discourage outside money being spent in the campaign.

Independent spending can take the form of party money or flow through SuperPACs. These entities have blossomed since the U.S. Supreme Court's 2010 Citizens United decision reversed long-held limits on campaign spending for corporations or organizations in federal races - as long as there was no coordination between interest groups and candidates' campaigns.

Its principles now guide spending in state races, as well, and have opened the floodgates for SuperPAC money on that level.

Ronald Castille, who retired as Pennsylvania's chief justice in 2014, said the surge of money is coming, in part, from interest groups frustrated with state legislatures that don't pass bills friendly to their agenda. Judicial races, which attract less voter attention, are another way to spend money and gain influence, he said.

"They're actually trying to buy a vote in their minds," he said.

Castille, a Republican, had a reputation for ruling independent of party wishes, but admitted that campaign contributions weigh on judges. "These people gave me a million dollars," he said. "I mean, wow, how do you get that out of your mind?"

Court advocates talk about the damage that money does to the public's trust in justice, but studies suggest that it goes beyond perception, said Joanna Shepherd, an Emory University law professor who studies the effect of money in judicial races.

In a look at contributions and voting records nationwide from 2010 to 2012, she found that the more money business interests spent on a judge's campaign, the more likely the judge's vote would favor a business litigant.

Aggressive campaign tactics also tend to scare away candidates who might have the judicial skills but not the stomach for campaign hardball.

"We're seeing different kinds of people not only winning elections but also wanting to run for these jobs," Shepherd said.

One oft-cited case of independent spending on judicial races occurred in 2004 in West Virginia, where Don Blankenship, CEO of a coal company, spent more than $3 million to support Brent Benjamin for the Supreme Court. Benjamin won and cast a vote in the court's decision to overturn a $50 million judgment against Blankenship's company.

The U.S. Supreme Court in 2008 reversed the decision, determining that Benjamin should have recused himself.

In the 2012 Wisconsin Supreme Court race, independent spending reached $3.7 million, according to Justice at Stake.

David Prosser, who ultimately won a seat, was the target of attack ads but also benefited from millions in independent spending, particularly from groups supporting Gov. Scott Walker's campaign against union collective bargaining, said Matthew Rothschild, executive director of the nonpartisan Wisconsin Democracy Campaign.

The repercussions of that race continue, he said. When Walker's ban on collective bargaining went before the state Supreme Court, the justices heard arguments and ruled in favor of Walker on the same day. And in another case before the court, independent organizations that contributed to justices, including Prosser, are accused of improperly collaborating with the governor's campaign.

Several justices' campaigns benefited from the groups' efforts but have not recused themselves, Rothschild said.

"The outside money has so contaminated things here in Wisconsin at the state supreme court level," Rothschild said.

Three years ago in Michigan, independent sources spent $9.5 million, including money spent on the ad trying to link one candidate to a Guantanamo detainee, according to Justice at Stake.

The Judicial Crisis Network, a national conservative nonprofit, spent $1 million against Democratic candidates, said Rich Robinson, executive director of Michigan Campaign Finance Network, and the progressive group Greater Wisconsin Committee spent $1.4 million.

But things have improved, he said. A race last year featured far fewer negative ads.

Pennsylvania has no limits on campaign donations or spending, and ethical guidelines that prevent candidates from making misleading statements about opponents don't apply to independently funded advertising, according to Lynn Marks, executive director for Pennsylvanians for Modern Courts.

Taken together, the state is a ripe target for outside money.

Said Seaton, another advocate: "The balance of the court is very much up for grabs - and this may very well be the way some candidates rise above others."