A Pox Upon the Chambers

by Mike McCabe, Executive Director

March 24, 2008

The trouble with Wisconsin Supreme Court elections nowadays is not just how they eerily resemble John Grisham’s latest novel.

It’s not just that a single lobbying group and three shadowy front groups are doing most of the talking in this year’s race, filling the airwaves with twisted facts, deceptive insinuations and outright lies.

It’s not just that what little advertising the two candidates are doing dwells on a subject – crime fighting – that the Supreme Court rarely if ever deals with. Watching the ads, you’d think they were running for sheriff or district attorney or trial court judge, not for a seat on the state’s highest appeals court.

It’s not even that the challenger in this race chose to put his name and reputation behind a race-baiting, Willie Hortonesque ad that the State Bar Association’s judicial campaign integrity committee called “highly offensive and deliberately misleading,” “disgraceful” and “contemptible.”

The full measure of the problem is found in polling done in Wisconsin by American Viewpoint, a leading Republican polling firm, showing more than three-quarters of state residents believe campaign contributions significantly influence the decisions judges make in the courtroom. Only 5 percent said they don’t believe donations have any influence at all on judges’ decisions.

To say Wisconsin’s Supreme Court is operating under an ethical cloud is a gross understatement. It’s much worse than that. The court is losing the public’s trust and confidence. Or has already lost it.

Judges are supposed to be impartial. They are supposed to be accountable only to the law and the constitution, not party bosses or big campaign donors. The growing public perception that judges rule the way their special interest backers want them to rule is a disaster for the court.

The crisis of confidence facing the high court has its roots in last year’s election. Wisconsin has elected its Supreme Court since 1852 and for more than 150 years these elections produced a high court that enjoyed the citizenry’s trust. Supreme Court races were relatively inexpensive, dignified affairs. It was not until the April 2007 election that the public’s confidence was profoundly shaken. That race shattered the mold.

Nearly $6 million was spent, more than four times the previous record. Three highly partisan interest groups secretly spent over half of the total.

I was quoted last year saying the 2007 race was a “cash-soaked, special interest-contaminated smearfest.” It was all of those things, and I stand by my words. But this year’s race is actually worse. What adjectives can do it justice?

As bleak as it’s gotten, there is no reason we cannot repair what’s gone wrong with our judicial elections and restore them to good working order so they once again serve the state the way they did for a century and a half.

All seven current members of the Supreme Court – from the most conservative justice to the most liberal – signed a letter calling for publicly financed judicial campaigns. Our Supreme Court is not unanimous about much of anything. But the justices are unanimous about this.

The public agrees. American Viewpoint’s polling done showed that 65 percent of Wisconsin residents support publicly financed Supreme Court elections. After hearing arguments both for and against such reform, support for it went up to 75 percent.

Senate Bill 171, known as the Impartial Justice bill, creates such a system, freeing candidates from the money chase and allowing good judges to get their message to voters without cozying up to partisans and special interests, thereby compromising their independence. It passed the state Senate, but is bottled up in the Assembly.

SB 171 would go far toward rescuing our court. It gets the candidates back in the game. Today, they are bystanders in their own race. They are defined by the interest groups, and any attempts they make to respond are drowned out by those interest groups.

But another reform measure, Senate Bill 463, also is sorely needed. It puts candidates back on a level playing field with the outside groups. There are limits on what candidates can take from individuals and political action committees, and they can’t accept a penny from the general treasuries of corporations and labor unions. They also have to disclose everything. The partisan and special interest front groups that have taken over Supreme Court campaigns don’t play by those same rules. They can take money from anywhere, in any amount. And they can keep the public in the dark about where the money comes from and how it is spent.

SB 463, which also passed the Senate but is being blocked in the Assembly, would close the gaping loophole that has savaged our state’s once-strong campaign finance laws.

Together, SB 171 and SB 463 would put voters back in the driver’s seat. And save our court from a dismal fate.

WDC Executive Director Mike McCabe
Mike McCabe
WDC Executive Director
2000-2014

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