Judicial candidates vulnerable to outside spending

Ugly Supreme Court primary in Illinois

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 Updated:

Sen. John J. Cullerton , D-Chicago, left, is sworn in as president of the Illinois Senate by Illinois Appellate Judge Mary Jane Theis, right, as Cullerton's wife, Pam, looks on Wednesday, Jan. 14, 2009, in Springfield, Ill. 

Jeff Roberson/AP

Weeks before the March primary, Aurelia Pucinski looked like a shoe-in for a 10-year seat on Illinois’ highest court.

Polls published in the Chicago Sun-Times had her up by 20 points a month before the Democratic primary. The daughter of a famous Illinois congressman, she also had great name recognition — a rarity in judicial races.

But days before the election, mailers began appearing all over Cook County, calling her unqualified and “anti-choice.” Pucinski says she could not address the charge — the state judicial code of conduct prohibits candidates from commenting on an issue that may come before the court.

The tide turned in a week. Instead of cruising to an easy victory, Pucinski lost by 28 points.

The mailers were not paid for by any of her opponents. Instead, they were funded by Personal PAC, an abortion rights group that has had a hand in Illinois politics since 1978. Personal PAC spent $200,000 on ads to make sure its favored candidate, Justice Mary Jane Theis, remained on the bench.

“I lost dirty, and that troubles me,” Pucinksi said.

Thirty-nine states elect at least some of their judges, according to the Brennan Center for Justice. The vast majority of cases in the country are heard by elected judges.

Unlike non-judicial candidates, anyone who runs for judge must limit the subjects they can talk about. Illinois, like most states, prohibits a judicial candidate from making statements that “commit or appear to commit the candidate” to an issue that may come before them while on the bench.

Outside spending groups do not operate under the same rules. And thanks to the U.S. Supreme Court’s Citizens United decision, such groups can accept unlimited donations from wealthy individuals, corporations and labor unions and use the money to attack or support a candidate. The decision essentially invalidated laws that limited outside spending groups in 24 states, including Illinois.

Personal PAC was not an independent expenditure group, also known as a "super PAC," at the time, though it did form one later. But in Illinois, the contribution limits are so high — PACs can accept $50,000 per year from corporations and $10,000 per year from individuals — that they can make a near super PAC-level impact. 

By way of comparison, a federal candidate can accept $2,500 per election from an individual and corporate donations are banned. PACs that make contributions to candidates can accept up to $5,000.

Theis’ campaign manager says high ratings and key endorsements propelled her to victory late in the race. Theis had been appointed to the state Supreme Court a year-and-a-half before the race. She was endorsed by Chicago Mayor Rahm Emanuel, the Cook County Democratic Party and the Chicago Tribune.

But Pucinski blames Personal PAC’s attack for the sudden reversal.

Enjoying a comfortable early lead in the four-candidate race, Pucinski voluntarily capped donations to her campaign from businesses to $500 and from attorneys to $75 and refused to ask for endorsements from single-issue groups like Personal PAC.

With these self-imposed limits in place, her campaign took in just over $30,000 and attracted no outside spending.

Theis took a different tack. She raked in more than $1.1 million thanks to fundraisers held by state Democrats including Emanuel and spent campaign funds on ads touting her endorsements. Theis declined to comment for this story.

She told the Chicago Tribune days before the race that she had reached out to a number of groups for support, but that her endorsements would not undermine the integrity of the courts.

”People understand political campaigns are the way some judges are chosen,” she said.

A week out, polling from the Theis campaign put her and Pucinksi neck and neck. Then, Personal PAC launched its attack. The funds went to mailers, barraging Democratic women in the Cook County area with the claim that Pucinski was an “anti-choice” candidate.

Pucinski held a press conference days before the election to decry the big spending by Personal PAC, but was mum on the “anti-choice” charge, due, she says, to the code of conduct for judicial candidates.

The claim appears to be rooted in a 1993 Chicago Tribune story. Pucinski said she didn’t “believe in abortion as a method of birth control” but would not make an attempt to stop abortions in Cook County. She says she has since refused to express her personal views on the topic.

Despite Pucinski’s nearly two decades of silence on abortion, Terry Cosgrove, CEO of Personal PAC, stands behind the group’s position in the primary.

“[Pucinski] spent her entire career trying to hide her anti-choice and anti-birth control stance,” he said.

In the end, Cosgrove and Pucinski do agree on one thing — Personal PAC had a major influence on the primary. Cosgrove says that Personal PAC’s mailers “educated hundreds of thousands of voters on her record.”

Pucinski says they cost her the election and allowed Theis to remain on the bench.

At the time of the election fight, Personal PAC’s legal team was a securing a different kind of victory — this one in the federal courts.

Prior to 2011, Illinois imposed few, if any, limits on contributions. Reforms came following indictments of former Govs. George Ryan and Rod Blagojevich on federal corruption charges. The state legislature took action and capped campaign donations to guard against the quid-pro-quo system that had become synonymous with Chicago politics.

The Supreme Court race was one of the first under the new law.

Personal PAC moved to have those limits thrown out. Citing the Citizens United case, the group challenged the state’s contribution limits to independent expenditure groups. It won. A day later the organization created “Personal PAC Independent Committee,” the state’s first super PAC, and began raking in donations. Despite the court victory, it did not spend any super PAC money on the Supreme Court race.

For judicial races this year, that’s not likely to be the case.

In the 2012 election, 19 states have contestable state Supreme Court elections. Ten of those states — Alabama, Kentucky, Michigan, Minnesota, Montana, North Carolina, North Dakota, Ohio, Texas and West Virginia — had their laws banning corporate and/or union contributions to outside spending groups tossed out.

Next up for Personal PAC and Theis is the general election, where she is heavily favored. She will face Circuit Judge James G. Riley, who ran unopposed in the Republican primary.

State Sen. Dan Duffy, R-Lake Barrington, who faced attacks by Personal PAC three years ago, said a super PAC will make Personal PAC CEO Terry Cosgrove more intimidating to candidates who face the pro-choice organization.

“Now that he’s [got] a super PAC, he’s even more powerful than before,” Duffy said.

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