1 Conquering the Courts The Religious Right’s Fight to Rig the Rules and Undermine Judicial Independence by Arn Pearson ACKNOWLEDGEMENTS David Armiak, Max Abbott, and Cynthia Moothart contributed to this report. This report was made possible by funding from the Piper Fund, an initiative of the Proteus Fund. The Center for Media and Democracy (CMD) is a nationally recognized watchdog that leads in-depth, award-winning investigations into the hidden avenues of influence that undermine our democracy, environment, and economic prosperity. 2 Table of Contents Executive Summary_______________________________________________ 1 Introduction______________________________________________________ 2 Stacking the Deck Against Rights____________________________________ 3 Focus on the Family and the Family Policy Alliance_____________________ 5 State Profiles_____________________________________________________ 7 Alaska_____________________________________________________ 7 Arkansas___________________________________________________ 8 Florida_____________________________________________________ 8 Iowa_______________________________________________________ 9 Kansas_____________________________________________________ 10 North Carolina_______________________________________________ 12 Tennessee__________________________________________________ 12 Wisconsin__________________________________________________ 13 Conclusion______________________________________________________ 15 Appendix A______________________________________________________ 16 End Notes_______________________________________________________ 18 3 Executive Summary The ouster of three justices from Iowa’s Ten of the biggest politically active reli- Supreme Court in 2010, as retaliation for gious right groups have a combined bud- a unanimous decision overturning the get of more than $220 million. Focus on state’s ban on same-sex marriage, sent the Family and its advocacy partner, the shock waves through courts across the Family Policy Alliance, have not received country. But it was just one battle in a as much attention as some other groups, long-term, well-funded, and highly orga- but spent $92 million in fiscal year 2016, nized crusade by Christian right groups and funneled $6.9 million to a network of to undermine rights by assailing the inde- local partners in 38 states between 2012 pendence of America’s judiciary. and 2015. The religious right and its political strate- Over the past decade, the two groups gists have recognized the importance of have worked in coalition with other the courts for advancing its social agen- “values” organizations, partisan play- da and world view for decades. James ers, and corporate front groups in more Bopp, an Indiana lawyer and former Vice than a dozen states—including Alaska, Chairman of the Republican National Arkansas, Florida, Iowa, Kansas, North Committee, has effectively married the Carolina, Tennessee, and Wisconsin—to interests of partisan and corporate ac- politicize state courts through legal chal- tors with conservative religious groups lenges, legislation, and election to mount a relentless attack on the spending. walls that protect judges from popular pressures—merit selection, campaign In addition to their Iowa victory, those finance laws, and judicial codes of con- coalitions have passed a 2014 ballot duct that limit what judges can say about measure abolishing Tennessee’s merit their views on legal issues. selection system; won a conservative majority on Wisconsin’s Supreme Court; However, Bopp’s 2010 U.S. Supreme and mounted a major, but unsuccessful, Court victory in Citizens United has argu- challenge against four Kansas Supreme ably done more to subject state courts Court justices in 2016 based on their to political pressures than anything else. rulings on abortion, death penalty, and That decision opened the door to unlim- school funding cases. ited political spending by corporations, including nonprofits, and outside spend- While religious right groups have not ing on judicial elections since then has been able to replicate their Iowa rout in soared. the past three election cycles, they have stepped up their challenges to judicial Religious right organizations have be- independence and are in it for the long come a major player in that mix in a haul. number of states, and have been em- boldened by the Trump administration’s recent assaults on rights and disdain for the separation of church and state. 1 Introduction In 2009, six years before the U.S. Su- in high-profile congressional, legislative, preme Court affirmed marriage equality, presidential, and gubernatorial elections, the Iowa Supreme Court unanimously the push to politicize state judicial elec- upheld a lower court ruling that denial of tions has received less attention. But the marriage licenses to same-sex couples threat is just as real. The influence of big violated the liberty and equal protection money—already pervasive in the making clauses of the state’s constitution.1 of our laws—increasingly casts a shad- ow on how laws and constitutions get The political backlash was swift and dra- interpreted. matic. A network of right-wing religious organizations poured $1 million into the The U.S. Constitution enshrined three state to oppose the 2010 retention elec- branches of government as a check and tion of three of the justices, and all three balance against tyranny, but today’s were voted off the bench, marking the well-financed crusade against judicial first time in state history that even one independence threatens to collapse the justice was ousted. separation of powers into a concentra- tion of power instead. It was not, however, a first for the nation. Social conservatives successfully ousted All courts are under attack by conserva- three California Supreme Court justices tive warriors, but since Iowa those most based on their death penalty decisions in at risk are in the states. Newly empow- 1986, and Karl Rove engineered Repub- ered by Citizens United, the same spe- lican supreme court upsets in Texas and cial interests that have flooded statewide Alabama in 1988 and 1994.2 and legislative races with dark money are bearing down on courts to eliminate But the Iowa sweep signaled a renewed the last barrier to their ideological agen- push by the religious right to impose its da. ideology and agenda on state courts in the wake of the U.S. Supreme Court’s The stakes are high. While the U.S. ruling in Citizens United v. FEC, which Supreme Court commands most of our legitimized the intervention of corpo- attention, it hears only around 100 to rations—including nonprofits—in elec- 150 cases each session. By compari- tions. Citizen United’s legal mastermind, son, more than 100 million cases come James Bopp, orchestrated challenges to before nearly 30,000 state court judges judicial selection rules and sitting judges every year.3 And those decisions touch in Iowa, Kansas, and Alaska in 2009 and lives in intimate, deeply personal ways. 2010. While the other two efforts failed, State courts very often have the final say the Iowa upset caused a judicial earth- in determining what human rights and quake, and the religious right came away freedoms we, as a society, affirm or deny with a winning playbook it could put to under the rule of law. use across the nation to impose its ideol- ogy and social policies on state courts. While we have become accustomed to news of powerful “dark money” groups flooding the airwaves and our mailboxes 2 Stacking the Deck Against form of election for their judges, ex- posing them to the public pressures of Rights modern campaigns. Twenty-one states choose their Supreme Court justices by The organized religious right and its popular election, and another 16 have political strategists have long recognized periodic retention elections requiring a the importance of the courts for advanc- 50-percent-plus vote for justices to stay ing its social agenda and world view. in office after being appointed. Attorney James Bopp has spent a good part of the last two decades fighting to Bopp has also spearheaded a string of maximize the influence of his clients in cases challenging restrictions on judicial the halls of justice by challenging re- “speech,” and won a major victory in strictions on campaign spending, judicial White v. Republican Party of Minnesota selection laws, and ethics rules. In his in 2002, when the U.S. Supreme Court quest, Bopp has married the interests struck down that state’s bar against judi- of the Republican National Committee, cial candidates announcing their views where he served as special counsel and on legal and political issues.5 Bopp’s vice chairman, with powerful conserva- goal is to pressure judges and candi- tive clients like Focus on the Family, the dates to go on the record on hot-button National Right to Life Committee, the issues and so that religious and partisan National Organization for Marriage, and conservatives can mobilize voters to the Christian Coalition. hold them accountable to their ideologi- cal views.6 The target? Any state that has some Source: Common Cause 4 3 But Bopp’s victory in Citizens United ful new ally in the Trump administration, has arguably done more to politicize the which has launched assaults on every- judiciary than anything else. In 2010, the thing from access to contraceptives and first election after the Citizens United abortion to civil rights protections and decision, spending on retention elections marriage equality, and has challenged in just four states (Alaska,