PRAIRIE VILLAGE, KS — This has been an unexpectedly busy and competitive campaign season in Kansas, and all eyes are on whether a pair of embattled Republicans, Gov. Sam Brownback and Sen. Pat Roberts, can pull out their re-election bids on Tuesday.
So maybe it’s not surprising that a campaign-finance story broken by an out-of-state reporter last week hasn’t seen much local follow-up. But the story is an important one—and journalists here should dig into it, even after Election Day.
The gist of the story is this: Over the summer, the state Supreme Court by a 6-1 majority overturned the death sentences of a pair of convicted murderers in a notorious Wichita case, citing procedural improprieties in the sentencing process. In Kansas, justices are appointed by the governor, but must periodically stand for retention in elections, and two of the justices who were in the majority are on the ballot this year. In early October, friends and family members of the murder victims announced that they had formed a group called Kansans for Justice to campaign for the justices’ removal.
Robert Faturechi, a reporter for ProPublica, was curious about where the group’s support was coming from. So he contacted the group, he says, to ask about its finances. He didn’t get clear answers. He asked for the campaign-finance filings. No luck there, either.
So he placed a call to the state’s Governmental Ethics Commission, which handles campaign-finance disclosures—and found, to his surprise, that there were no such filings. The state’s campaign-finance laws do not apply to judicial-retention campaigns.
“That sort of became the story,” Faturechi said. His Oct. 27 article described the loophole open to Kansans for Justice and other groups like it: “Even though the group has all the hallmarks of a political committee—it is soliciting contributions, plans to send mailers, and has an explicit electoral goal—it’s not required to report anything about its leadership, donors, or spending.”
Why is this a big deal? In the case of Kansans for Justice, we don’t know for sure that it is. With the election imminent, it’s not clear that the group has raised or spent much money. The group has also publicly distanced itself from politicians who have tried to leverage the case for partisan gain.
But state courts are an increasingly important battlefield in the fight for partisan control over every aspect of government, in Kansas and around the country, and the fact that we don’t know for sure is the point. A campaign-finance system that doesn’t cover court elections is incomplete—and makes it harder for journalists to tell the full story.
In Kansas, that battle has been running hot. Late in this campaign, Brownback took up the Kansans for Justice cause to boost his own reelection bid, releasing an attack ad that claimed “liberal judges” backed by his Democratic challenger had let the murderers “off the hook.” The governor then doubled down on the ad by calling for the ouster of the two justices, who were appointed by a Democratic governor.
But Brownback has actually been fighting for greater control over state courts almost since he took office—and crime has not been the primary issue.
Responding to years of frustration among conservative activists over court rulings on reproductive rights and schools in particular, the governor called for judicial reform early in his term. In 2013, he signed a bill that gave the governor sole power to nominate appeals court judges, eliminating the role of a state commission that puts forth candidates. He has tried to make the same change to the state Supreme Court nominating process.
Earlier this year, the battle between Brownback and the judiciary came to a head. In March, the state Supreme Court ruled that the legislature’s underfunding of the public school system was unconstitutional. The following month, the governor signed a bill stripping the court of many of its administrative powers. And in August, he filled a vacancy on the court with his former chief counsel, a conservative lawyer who had also served as counsel to Americans for Prosperity.
Brownback and his allies see this as making courts more accountable to the elected branches of government and less controlled by liberal lawyers. Matthew Menendez, of the left-leaning Brennan Center for Justice, called Brownback’s moves “one of the more striking examples of packing the judiciary that we’ve seen recently,” and added: “It goes straight to the judiciary’s ability to administer itself. There’s a real separation-of-powers issue here.” Either way, it’s a big deal.
Brownback’s battles with the judiciary did not occur in a vacuum. As the Brennan Center has reported, serious money is now being spent in judicial elections across the country. Just this year, outside groups have spent millions on judicial races in Illinois, Michigan, North Carolina, and Missouri. In Missouri, a GOP group called the Republican State Leadership Committee recently startled local observers by dropping six figures into a county judicial race.
So far, no major outside spending effort on judicial campaigns has surfaced in Kansas. But it might be easier for one to evade notice, because of the disclosure loophole exposed in Faturechi’s story.
And to circle back to Kansans for Justice, Faturechi did discover an interesting detail that no one else had picked up on—a man who called the state ethics commission on the group’s behalf is the state development director of Kansans for Life, an organization that has campaigned to oust state Supreme Court justices in the past and lobbied for Brownback’s judicial reforms.
That suggests, at a minimum, that people who are part of the broader battle over the court are paying close attention to Kansans for Justice, and are eager to see it succeed. But the significance of these relationships will be difficult for reporters to determine as long as groups trying to influence judicial elections in Kansas are allowed to stay in the shadows. Faturechi’s article matters because it identified that problem.
The judicial-retention campaign has been widely covered here, and reporters and columnists from outlets large and small were quick to respond to the Brownback ad—importantly, in debunking its outrageous claim that the two convicted killers had been let “off the hook.” (Regardless of what happens as the case proceeds, they will spend life in prison.) Papers like the Lawrence Journal-World and Kansas City Star have also helpfully pointed readers to the nonpartisan Kansas Judicial Evaluation Committee ratings, where judges and attorneys evaluate the justices on their body of work.
But coverage of the broader story has been limited. Only Wichita Eagle editorial writer Rhonda Holman has fully connected the dots between Brownback’s recent campaign attacks and his ongoing battles with the judiciary. (Another useful summary is provided by Carrie Severino of the conservative Judicial Crisis Network, who unlike Holman strongly supports Brownback’s efforts).
And the ProPublica article was picked up by some national websites—but not, with the exception of Kansas City NPR affiliate KCUR, in Kansas. It did draw a link in a Hutchinson News column, and Butler County Times-Gazette publisher Kent Bush argued that the campaign-finance loophole first exposed by Faturechi should be closed.
Is there any chance of that? Some state government officials say they would support changing the law to require more transparency. State Senate Judiciary Chairman Jeff King, a Republican, told Faturechi, and confirmed to me via email, that he would support such a reform.
King did not commit to drafting or sponsoring such a bill, however, and there is no reason yet to think the legislature will take the issue up in its next session.
A little bit of local press coverage might help.
Deron Lee is CJR’s correspondent for Iowa, Missouri, Kansas, and Nebraska. A writer and copy editor who has spent nine years with the National Journal Group, he has also contributed to The Hotline and the Lawrence Journal-World. He lives in the Kansas City area. Follow him on Twitter at @deron_lee.