FactCheck.org: Court Fight in the Heart of Dixie

Court Fight in the Heart of Dixie

October 23, 2008

Dyspeptic dueling for an Alabama Supreme Court seat. Another in our Court Watch series.

Summary

Alabama holds the distinction of having had the nation's most expensive Supreme Court races, with $54 million spent from 1993 through 2006. This year's battle for an open seat on the bench seems likely to sustain the pattern, with heaps of cash being thrown down for ads and a tone that has turned ugly.

The attacks in the Alabama campaign have been a departure from what we've seen in high court races in most states this year, with the notable exception of Wisconsin. We wrote about some of the ads in that mudfest back in March and April, but subsequent campaigns in other states have been mostly civil affairs, to the surprise of many observers of recent trends in judicial elections.

In Alabama, though, things have taken a decidedly negative – and misleading – turn.

Paid phone callers claimed that Democrat Deborah Bell Paseur had been given an "F" rating by the state bar association. In fact, the group gives no such grades to judicial candidates, and its president says the false calls are "reprehensible."
A Paseur ad said Republican Greg Shaw is "backed by more than a million dollars tied to gas and oil lobbyists." But that's just her guess. The group she's referring to doesn't disclose where it gets its money, and it deals with more than just oil and gas issues.
A Shaw ad claims that he is "serving Alabama with Supreme Court experience." But Shaw is only a judge on the Criminal Court of Appeals, not a Supreme Court justice. He once worked as a lawyer for two justices.

Analysis

The race between appellate court judge Greg Shaw and retired district judge Deborah Bell Paseur seems likely to cement Alabama's place as the state with the nation's most expensive Supreme Court races. Currently, there is only one Democrat among the nine justices on the high court; Paseur, if elected, would be the second. Alabama is one of eight states where candidates for the courts run with clearly identified party labels.

Falsehoods on Line 1

Just as robo-calls have been deployed in the presidential race, at least one phone campaign of a type known as a push poll (in which the caller appears to be conducting a poll, but spreads negative information about a candidate) has played a role in the Alabama court contest.

We don't have a recording of the call, but according to press reports in Alabama, the caller claims that Paseur got an "F" from the state bar. The calls appear to originate from a Virginia phone bank, though it's unclear who is behind them.

But the Alabama State Bar doesn't do any such evaluations. "Let me make this very clear," said its president, Mark White, in a statement. "The state bar does not conduct an evaluation poll of any judicial candidates. ...These falsehoods and misrepresentations are nothing short of reprehensible.” We're with him.

Owned by Oil?

Looming over the race is a decision by the Alabama Supreme Court last year to drastically trim a whopping $3.8 billion jury verdict against ExxonMobil for cheating the state of natural gas drilling royalties. All eight Republican justices voted to cut it back to $52 million, while the sole Democrat on the court, Sue Bell Cobb, dissented.

Deborah Bell Paseur Ad: "Choice is Clear"

Announcer: Greg Shaw's cronies are being condemned for attacking Deborah Bell Paseur with lying phone calls. Greg Shaw has never served on the Supreme Court, he was a staff attorney. He's backed by more than a million dollars tied to gas and oil lobbyists from this building near Washington, D.C. So the choice is clear: Deborah Bell Paseur is the only judge who's sentenced criminals to jail, and Deborah can't be bought.

Paseur: If you honor me with your vote, I'll serve you with honor.

With Big Oil being the bad guy in the state these days, Paseur has run several ads attempting to tie Shaw to the oil and gas industry, saying that his campaign has been funded by those interests while she has taken "not one dime" from them.

In one ad, Paseur accuses Shaw of being "backed by more than a million dollars tied to gas and oil lobbyists from this building near Washington, D.C." The camera shows a nondescript office building.

The ad is referring to the Center for Individual Freedom, a conservative group headquartered in the Washington suburbs. Paseur may be close on the amount of money the group has spent supporting Shaw: According to Paseur's media buyer, it had purchased nearly $1.1 million worth of air time as of Oct. 21. Alabama media reports put the figure at $500,000 as of Oct. 14.

But can it be said that the group is tied to "gas and oil lobbyists"? That's a stretch. CFIF is a 501(c)(4) organization under the tax code, and as such it isn't required to disclose its donors. Alabama law would require it to do so if it advocated the election or defeat of a candidate, but its ad praising Shaw does not explicitly do so. This means that we don't know how much of its budget might come from oil and gas interests – and neither does Paseur.

Here are a few of the things we do know about CFIF and the energy sector:

According to its Web site, the group takes positions that are often in line with those of the oil and gas industry, such as drilling in the Arctic National Wildlife Refuge. On one page titled "Will Sarah Palin's Energy Wisdom be Contagious?" the group says, "Governor Palin already brings a refreshing change to a political arena saturated with environmental foolishness."
In August, the group was part of a coalition that lobbied against a provision in an energy bill that could have increased taxes for some energy companies.
CFIF was one of many groups to sign a letter urging the Senate to reject the Lieberman-Warner climate change bill earlier this year, which, the letter said, would do "grave harm to our economy, the poor and U.S. competitiveness."
CFIF has received some funding from the Carthage Foundation, of which Richard Mellon Scaife is the chairman. Scaife's fortune has resulted in part from large family holdings in Gulf Oil.

But for every bit of evidence that might support Paseur's charge, there's ample material to discount it.

The group is involved in many issues that have nothing to do with energy. On CFIF's home page is a link to a plea asking readers to urge George Bush to pardon two Border Patrol agents; one to the group's analysis of McCain's proposal to tax health benefits; another to an interview with someone explaining that the U.S. must win the war in Iraq (okay, that one might have something to do with oil!).
The group's second quarter 2008 lobbying disclosure report indicates that it was making the rounds on Capitol Hill on two telecommunications issues: Net neutrality (CFIF was opposed) and retroactive immunity for telecom companies in amendments to the Foreign Intelligence Surveillance Act (it was in favor).
The Carthage Foundation's grants have provided only a small amount of funding ($125,000 in 2005, for instance) to CFIF, whose budget is in the millions, to judge from how much the group is spending on ads this year and the $1.2 million it spent in 2007 in Pennsylvania's Supreme Court contest.

Paseur would have a much better case if she accused CFIF of being a pro-business group, and Shaw of receiving most of his contributions from business interests that want to limit monetary damage awards in civil lawsuits. In fact, most of his campaign funds have come from political action committees with names like Lawsuit Reform PAC and the Alabama Civil Justice Reform Committee (ACJRC PAC), and the donors to those PACs overwhelmingly tend to be corporations that do business in the state, such as Alfa Insurance and Compass Bancshares. The Alabama media have not identified any contributions to Shaw from oil companies or their PACs, or from other PACs that received money directly from oil companies.

It's true that two ExxonMobil lobbyists are involved in running a number of the PACs that have given to Shaw: Bob Geddie and Stephen Bradley. It's also true that it can be difficult to untangle the real sources of funds in Alabama, where it's common for PACs to give to one another and send their money through a sort of maze of committees. And Shaw has been careful not to deny that he may have received contributions linked to a certain oil company: "I'm sure there may be some individuals that have connections to ExxonMobil," he said.

It's also the case that a top consultant to Shaw, to whose firm he has paid more than $300,000 in this campaign, is Terry Benham. Since August, 2006, Benham has been affiliated with The Livingston Group, a Washington D.C. lobbying firm, and in that time the firm has been paid $820,000 by oil and gas companies, according to federal lobbying reports. It's not clear how much the oil and gas interests might have paid additionally for state and local lobbying, which is Benham's specialty. And Benham's biography on the LinkedIn professional networking Web site says that he "has interests...in oil and gas exploration."

Still, despite these links to the industry, if oil and gas money is playing much of a role in Shaw's campaign, it has remained a hidden one. And neither we nor the Paseur campaign has the goods to prove that the Center for Individual Freedom is a front for Big Oil.

Update, Oct. 27: A reader pointed out to us Shaw's connection to Benham, and Benham's to the oil and gas industry. After checking the information, we thought it was worth including, and we have added it in the next-to-last paragraph of this section.

Not Yet a Justice

One of Shaw's ads wraps up by saying that Shaw is "serving Alabama with Supreme Court experience." What with all the images of Shaw in judicial robes, one might think that he was an incumbent running to retain his Supreme Court seat.

That's not the case. According to Shaw's own Web site, he worked as an attorney for two Alabama Supreme Court justices for 16 years. That means he might know where the legal pads are kept and what happens to a case once it arrives at the court, but it's a far cry from being Justice Shaw. "Supreme Court experience" is a nice – and misleading – way to dress up a staff job. In 2000, Shaw was elected to the state's Court of Criminal Appeals, where he currently serves.

–by Viveca Novak

Sources

Velasco, Eric. "PACs shield donations in alabama Supreme Court race." The Birmingham News, 19 Oct. 2008.

Velasco, Eric. "State Supreme Court race includes attacks, big spending." The Birmingham News, 14 Oct. 2008.

"US court slashes $3.6 billion verdict against Exxon Mobil in natural gas royalties case." The Associated Press, 1 Nov. 2007.

Beyerle, Dana. "State bar moves to tone down campaigns." The Tuscaloosa News, 15 Oct. 2008.

"Coalition of 60 Groups Call for a Revised 'Gang of Ten' Energy Compromise." PR Newswire, 19 Aug. 2008.

"Leading Evangelical and Conservative Leaders Send Letter Urging Senate to Reject Lieberman-Warner." U.S. Senate Committee on Environment and Public Works, 18 March 2008.

2005 Annual Report. The Carthage Foundation, p. 1.

Velasco, Eric. "Supreme Court hopefuls feud over a Democrat ad that implies candidate Greg Shaw is accepting money from oil companies." The Birmingham News, 10 Oct. 2008.

Winning Ugly in Wisconsin

In Wisconsin's Supreme Court race the winner was on the side that threw the most mud.

Wisconsin Judgment Day, the Sequel

White challenger launches Willie Horton-style hit, while a business group twists the "letter from the grave" case.