Wisconsin’s Reversal on Public Financing Mirrors National Campaign

2010 elections sparked effort in many states to intimidate judges, weaken courts

October 27, 2011

Wisconsin’s decision this year to jettison public financing of judicial elections was part of an unprecedented national attack on state courts that followed the 2010 judicial and legislative elections, a new report by three nonpartisan legal reform groups reveals.

In the months following Election Day 2010, “legislatures across the country unleashed a ferocious round of attacks against impartial justice,” the report says, and a campaign to roll back public financing was part of the siege. The legislative attacks likely will continue into 2012.

“The story of the 2009-10 elections, and their aftermath in state legislatures in 2011, reveals a coalescing national campaign that seeks to intimidate America’s state judges into becoming accountable to money and ideologies instead of the constitution and the law,” warns the report, entitled “The New Politics of Judicial Elections: 2009-2010.”

The report was released today by the Justice at Stake Campaign, the Brennan Center for Justice and the National Institute for Money in State Politics. It is available at www.newpoliticsreport.org.

“In Wisconsin and elsewhere, we saw a withering assault on fair courts,” said Bert Brandenburg, executive director of the nonpartisan Justice at Stake Campaign. “These weren’t isolated proposals. The same special interests that have poured money into court elections used state legislatures to mount a national attack on impartial justice.”

“ Wisconsin’s Supreme Court used to be a national model. Now its reputation has been trashed and its deliberations have grown so politically divided and dysfunctional that they've even degenerated into physical confrontations,” said Mike McCabe, executive director of the Wisconsin Democracy Campaign. “It’s hard not to notice that the court took a decided turn for the worse when Wisconsin stopped having Supreme Court elections and started having Supreme Court auctions.”

A series of “New Politics” reports since 2000 has highlighted skyrocketing special-interest spending that has altered the face of state Supreme Court contests and eroded public confidence in fair and impartial courts.

Public financing protects fair courts, because judges do not have to seek large contributions from parties who appear before them in court. Polls in Wisconsin and elsewhere have shown broad, bipartisan support for public financing of judicial elections.

According to a national poll released today, 74 percent favor public financing of judicial elections, while only 15 percent are opposed. The poll showed that 83 percent of voters believe campaign contributions have a “great deal” or “some” influence on a judge’s decisions.

Wisconsin ’s legislature turned to public financing of state supreme court candidates in 2009, after two especially vitriolic and costly Wisconsin Supreme Court contests. This year, three of four Supreme Court candidates relied on the new system. Nonetheless, legislators went after the reform program, and they used a biennial budget bill to kill public financing after it had been tested in just one election.

Wisconsin is one of four states that adopted public financing for judicial elections over the last decade. Legislators in two other states mounted furious attacks on public financing in the wake of the 2010 elections. Other attacks coming from state legislatures included challenges to merit selection systems for choosing judges and threats to impeach judges for unpopular decisions.

“Cumulatively, these attacks represented a historically significant concerted attack on judicial independence, and on various reforms intended to reduce the influence of money and politics on state courts,” the report said.

Nationally, state high-court candidates and special-interest groups spent $38.4 million on high court elections in 2009-10, and a growing portion of that money was spent by a small number of secretive special-interest groups. The $38.4 million was somewhat less than the amount spent in the last non-presidential election cycle, in 2005-06. However, $16.8 million was spent on TV advertising, making 2009-10 the costliest non-presidential cycle for TV spending in judicial elections.

Including the 2011 election between Justice David Prosser and challenger JoAnne Kloppenberg, which was not covered in the report’s 2009-10 judicial election summary, candidates and special interests have spent $14.8 million on Wisconsin high-court elections since 2007. That is the nation’s second highest total for that period, behind only Pennsylvania .

About the Organizations

Justice at Stake Campaign

The Justice at Stake Campaign is a nonpartisan national partnership working to keep our courts fair, impartial and free from special-interest and partisan agendas. In states across America, Campaign partners work to protect our courts through public education, grass-roots organizing and reform. The Campaign provides strategic coordination and brings organizational, communications and research resources to the work of its partners and allies at the national, state and local levels.

The Brennan Center for Justice

The Brennan Center for Justice at New York University School of Law is a non-partisan public policy and law institute that focuses on fundamental issues of democracy and justice. Our work ranges from voting rights to campaign finance reform, from racial justice in criminal law to presidential power in the fight against terrorism. A singular institution – part think tank, part public interest law firm, part advocacy group – the Brennan Center combines scholarship, legislative and legal advocacy, and communications to win meaningful, measurable change in the public sector.

The National Institute on Money in State Politics

The National Institute on Money in State Politics collects, publishes, and analyzes data on campaign money in state elections. The database dates back to the 1990 election cycle for some states and is comprehensive for all 50 states since the 1999–2000 election cycle. The Institute has compiled a 50-state summary of state supreme court contribution data from 1989 through the present, as well as complete, detailed databases of campaign contributions for all state high-court judicial races beginning with the 2000 elections.