Volume of Ads Decisive in Supreme Court Races

Posted November 19, 2004 at 6:31pm

Even with national Republican gains during the past few election cycles, the office of state attorney general remains a major Democratic stronghold across the country.

The Democrats lost some ground in state attorney general races on Nov. 2, but not much. And the party still holds a sizable lead in AG offices nationwide.

[IMGCAP(1)] In the 11 AG races held this year, voters returned to office every incumbent who was running for re-election — six Democrats and three Republicans. The GOP’s big victories came in two hard-fought open-seat races.

In Washington state, King County Councilman Rob McKenna (R) beat state legislator Deborah Senn (D) for the seat previously filled by Christine Gregoire, the Democrat currently in the too-close-to-call governor’s race. And in Pennsylvania, the GOP held on to a vacant AG seat as Republican Tom Corbett defeated Democrat Jim Eisenhower.

Two gubernatorial appointments will shape the AG ranks next year. Democrats can expect to gain a seat when incoming New Hampshire Gov. John Lynch, a

Democrat, appoints a new AG. And Republicans should gain one when Colorado Gov. Bill Owens, a Republican, makes his pick to finish the unexpired term of Ken Salazar, the Democratic AG who won a Senate seat on Nov. 2.

And the upshot of all these switches? The Democratic edge in AGs should decline from 30-20 to 29-21 early next year. That’s a significant decline for the Democratic Party since 2000, when the party had a 38-12 edge. Aggressive GOP campaigning gets a large share of the credit for the party’s gains.

But the AGs still represent one of the Democratic Party’s political power bases — and the past few years have been marked by the success of Democratic AGs in winning higher office.

In 2000 and 2002, Democratic AGs won gubernatorial races in Arizona, Michigan, North Carolina, Oregon and Wisconsin. A Democratic AG, Mark Pryor (Ark.), also won a Senate seat in 2002. The only Republican AG to win higher office in that period was John Cornyn, now a Senator from Texas.

The Democrats continued that winning trend with Salazar’s victory, and possibly with Gregoire’s, if she can pull it out. Of the seven Democratic AGs who won higher office in 2000 and 2002, the party has managed to hold the AG seat in four of those cases.

There’s other good news for Democrats, too. In presidential and Congressional races, it’s usually Democrats who have been forced to steal “Republican” issues to win office — a difficult strategy when voters are effectively asked to choose between a Republican and a Republican “lite.”

But the issue landscape for state AGs is the opposite: Many of the most popular Republican AGs have sought to crack down on consumer fraud and corporate malfeasance. Those are issues on which Democrats typically score well.

Can the Democrats continue to benefit from the issue landscape? The proof will come as soon as such high-profile Democratic AGs as Richard Blumenthal (Conn.), Bill Lockyer (Calif.) and Elliot Spitzer (N.Y.) begin to run for higher office in the next few years.

State Supreme Court Races

The one clear downballot victory for Republicans in Election 2004 came in state Supreme Court races.

The U.S. Chamber of Commerce’s Institute for Legal Reform, a leading and deep-pocketed advocate for tort reform, got involved in 13 judicial races. It won 12 of them. (The only loss came in an Alabama primary earlier this year.) That’s roughly on par with the institute’s win-loss record since 2000, which has hovered around 80 percent to 90 percent.

Measured another way, in states where state Supreme Court candidates ran with partisan affiliations, Republicans won 13 of 14 races, said Jesse Rutledge, spokesman for Justice at Stake, a judicial-campaign watchdog group. Many other judicial races across the country were held under nonpartisan rules.

The two most closely watched victories for tort reformers came in Illinois and West Virginia. In Illinois, Republican Lloyd Karmeier defeated Democrat Gordon Maag with relative ease. In West Virginia, Republican Brent Benjamin more narrowly defeated Democratic incumbent Warren McGraw, even as McGraw’s brother Darrell was winning another term as state attorney general. Business advocates also cheered the four victories by Republican justices in Ohio — three incumbents and one open-seat contender.

“The results show that the legal-reform message is resonating with voters,” said Lisa Rickard, president of the Institute for Legal Reform. “The issue of lawsuit abuse and its impact on the economy, jobs and health care is really gaining traction.”

An equally big story emerging from this year’s judicial races is the money they attracted — a problem for critics who say that judges shouldn’t be beholden to interests whom they may later have to rule on. Anecdotally, business-backed candidates seemed to benefit from bigger money than trial lawyer-backed candidates did, analysts say. But pro-plaintiff candidates were hardly underfunded. (Institute officials said only that the group spent a “hefty” amount on judicial races this year, perhaps 25 percent higher than in the previous cycle.)

Justice at Stake is still tabulating the figures, but it has found that candidates this year raised at least $39 million, or $10 million more than in 2002. As late disclosures roll in, the numbers could surge past the 2000 record of $45 million, Rutledge said. Officials are still tallying funds spent independently by interest groups, who were influential in a number of states.

In the meantime, television advertising in judicial races spread from four states in 2000 to nine in 2002 and 15 this year. In fact, only five states that had judicial races this year did not see television advertising.

Spending on judicial advertising doubled this year to $21 million, including a blizzard of ads in primaries, which were almost unheard of in previous years, according to the Brennan Center for Justice at New York University Law School.

In addition, five states broke the $1 million mark, up from two states and one state, respectively, in the past two election cycles, the center found. Of the 28 races in which there was broadcast advertising, the winner in 25 of them was the one who had the most on-air advertising, according to the Brennan Center.

“When the U.S. Chamber of Commerce launders money for the insurance, tobacco, drug and chemical industries to the tune of perhaps $50 million to influence judicial races and hides the real source of the money from local voters, they can have an impact,” said Carlton Carl, a spokesman for the Association of Trial Lawyers of America.

ATLA has not historically been directly involved in judicial races, though its state affiliates usually are. As to whether that approach could change, Carl said: “Never say never.”

Bare-knuckled attack ads — such as the one that blamed McGraw for allowing a sex offender to remain on probation — were more common this year, analysts say. “We’re still analyzing the tone and the content of ads, but there is little doubt that some of the ads seen this year set new lows,” Rutledge said.

If there’s a silver lining, he added, it’s that the high-volume, high-dollar campaigns may be prompting a backlash. A public-financing package for judicial campaigns already implemented in North Carolina seemed to work well this year, Rutledge said. Pennsylvania is looking at implementing appointed judgeships followed by “retention” elections by voters. And Illinois and West Virginia may take a serious look at reforms in the wake of their contentious elections this year.

“It’s easy to get absorbed in the gloom and doom, but there’s reason to think there may be positive reforms as we move ahead,” he said.

Editor’s note: This concludes the regular run of the Out There column until later in the 2006 cycle.