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To be truly fair Wisconsin courts must be free from big political money

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by Jay Heck, Wisconsin Examiner
April 29, 2024

The April 12 announcement by Wisconsin Supreme Court Justice Ann Walsh Bradley, our state’s longest serving and most respected and distinguished court member, that she will not run for re-election in 2025, sent shockwaves through the political biosphere.  

Next year’s spring election was already expected to be hugely expensive and fiercely contested.  But now, with the three-term justice bowing out, the stakes for ideological control of Wisconsin’s highest court are even greater. The price tag of the April 2025 election to succeed Justice Bradley is universally predicted to exceed the astronomical $57 million spent in 2023 in Wisconsin between current Justice Janet Protaciewicz and her opponent, former Justice Daniel Kelly — by far the largest amount of money ever spent in any state supreme court election in American history.

The unprecedented and obscenely high amount of political money being raised and spent in Wisconsin Supreme Court elections is a fairly new and horrific development in our state. It wasn’t always this way here and it cannot and should not continue. 

When I started with Common Cause in Wisconsin in 1996, the Badger State was still considered to be the national beacon for democracy, competitive but civil political discourse and clean elections and — most notably — was said to have the best, most impartial and least corruptible system of courts, at all levels, in the nation.  

The Wisconsin Supreme Court, led by Chief Justice Shirley Abrahamson, was looked upon as the gold standard for how a state’s highest court should be elected and how it should conduct itself in the dispensation of justice to its citizens. It was widely respected, admired and even revered.   

The Supreme Court in turn set the tenor, tone and standard for Wisconsin’s Court of Appeals, circuit courts and municipal courts — all also widely praised and heralded.

Among the foremost champions in the nation for democracy and of free and fair elections, Wisconsinites decided long ago that our judges at all levels should be elected by the citizenry — not appointed or selected by a singular, select public official or by some elite entity. And so, since achieving statehood in 1848 Wisconsin has held nonpartisan elections for judges, almost invariably in the spring when voter turnout is never as robust as it is in partisan, November elections.

For many years the system worked well in Wisconsin. Elections for the Wisconsin Supreme Court were relatively tame and civil affairs where candidates were judged on their impartiality and on their judicial qualifications and temperament. Political affiliation and partisan leanings were not only downplayed, they were discouraged and much frowned upon. The central focus of Wisconsin Supreme Court candidates was on their impartiality and ability to uphold that long-held legal principle that justice is or should be blind, that courts should not make judgments based on appearance or on pre-ordained political disposition. What was prized above all by voters was the behavior any citizen would want and expect from a justice: that she or he be fair and impartial. 

But beginning in 2007 Wisconsin Supreme Court elections experienced a seismic shift. Partisan conservative special interest groups led by Wisconsin Manufacturers & Commerce (WMC) cynically calculated that buying influence with the Wisconsin Supreme Court was at least as important and far more cost effective than trying to buy a friendly legislative majority. And so they began pouring hundreds of thousands of dollars, most of it secret or “dark” money into judicial races to support candidates for the high court they deemed sufficiently “business friendly.”  

In 2009, the conservative majority on the Wisconsin Supreme Court also adopted a new recusal rule for justices and judges who were the recipients of campaign contributions.  In many other states in the nation, justices and judges must step away from and not participate in cases where one or more of the parties has contributed to that judge beyond a determined threshold, for the very rational and evident reason that a larger campaign contribution likely had an influence on the recipient and that transaction thereby created a conflict of interest for the justice or judge.  

But the Wisconsin Supreme Court majority adopted verbatim a recusal rule written by WMC which was essentially that no recusal at all is required if a campaign contribution is received. It is up to each justice or judge to decide whether or not to step aside. As a result, according to a 2014 study of judicial recusal rules across the nation, Wisconsin had the 47th weakest such rules of the 50 states. That “self-recusal” standard remains in place today.

The Wisconsin Legislature and former Gov. Jim Doyle reacted to the shocking special interest spending frenzy by deep-pocketed special interest groups in the 2007 and 2008 Wisconsin Supreme Court elections by enacting into law sweeping and effective bipartisan campaign finance reform legislation — the Impartial Justice Act of 2009 — which imposed voluntary spending limits of $400,000 on candidates for the high court in return for full public financing of their campaigns – and no solicitation of private contributions. With no private money flowing into their campaigns, justices could be truly impartial and beholden to no campaign donor other than to the public. 

The new law was the most advanced and sweeping of any judicial campaign finance system in the nation and a model for clean elections and in reducing the influence of money on the judiciary.

But less than 18 months later in 2011, incoming Gov. Scott Walker and the new Republican legislative majority repealed the Impartial Justice Act and went even further by ending the 30-year-old partial public financing system and spending limits for all other state elective offices.

And then in 2015, Walker and the GOP-controlled Legislature took an axe to the remaining safeguards and limitations in Wisconsin’s campaign finance law, including lifting virtually all limits on special interest money that could be raised and spent, weakening disclosure requirements and, most alarmingly, legalizing campaign coordination between special interest groups running phony issue advocacy communications with candidates — including Supreme Court candidates.

This insidious coordination had long been prohibited in Wisconsin and still is in almost every other state in the nation and in federal elections.

In less than a decade, between 2007 and 2015, Wisconsin was transformed from one of the more transparent and least “big money influenced” political campaign systems in the nation to one of the states with the least transparent disclosure requirements, corrupted by outside big dollar special interest groups and big donors. 

We went from being the progressive good government promised land to the political wasteland of the country.  

While there likely is not a lot that can or will be done to improve and reform Wisconsin’s judicial elections before the next state Supreme Court contest in April 2025, political leaders of all ideological stripes ought to begin to think about how to change the corrupt status quo.  Here are a few suggestions for inclusion in the necessary clean-up:

Re-establish an “impartial justice” law for the public financing of state Supreme Court elections modeled after the 2009 law which was in place for only one election before it was repealed.  Update and revise it to better fit current times and circumstances including more realistic spending limits and higher public financing grants.Establish clear recusal rules for judges at all levels in Wisconsin that clearly decree that if a certain campaign contribution is reached or surpassed beyond a certain threshold amount, then the beneficiary of that contribution (or of the expenditure against her/his opponent) must recuse from any case in which the contributor is a party before the court.Restore sensible limitations on the transfer of and acceptance of campaign funds and make illegal again campaign coordination between outside special interest groups engaged in issue advocacy with all candidates for public office — particularly judges.Petition the U.S. Supreme Court to reverse the disastrous 2010 Citizens United vs F.E.C. decision which ended over 100 years of sensible regulation of unlimited corporate, union and other outside special interest money in federal and by extension state elections, unleashing the torrential flood of campaign cash drowning democracy today.

Wisconsin needs to begin to figure out a better way to elect state Supreme Court justices and judges at all levels and those discussions need to begin in earnest now.  The upcoming 2025 state Supreme Court election to replace Justice Ann Walsh Bradley has already begun.  But there will be no rest for the weary as more equally critical state Supreme Court elections follow in April 2026, 2027, and 2028.  

We cannot continue down the current path. If there is no change a $100 million election is in our immediate future. We can and must do better. Wisconsin enacted bipartisan legislation to fix our state Supreme Court elections in 2009 and we can and should again.

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