Testimony of the Wisconsin Democracy Campaign on Senate Bill 40/Assembly Bill 65 and Senate Bill 43/Assembly Bill 63

Assembly Elections and Campaign Reform Committee and the Senate Judiciary, Corrections, Insurance, Campaign Finance Reform, and Housing Committee

May 27, 2009

Thank you for holding this hearing. The Wisconsin Democracy Campaign strongly supports both the Impartial Justice bill (SB 40/AB 65) and the Electioneering Disclosure bill (SB 43/AB63).

Our justice system is built on the bedrock principle that judges aren’t supposed to belong to anyone. Not political parties. Not special interest groups. Not big campaign donors. The bedrock is cracking and the idea that judges are accountable only to the law and the constitution is on very shaky ground.

Wisconsin’s Supreme Court elections have become auctions, and we need to turn them back into elections. That’s what the Impartial Justice and Electioneering Disclosure bills together would do. They go hand in hand and both reforms are sorely needed.

The people of Wisconsin deserve and our state’s system of justice needs Supreme Court elections where:

  • Candidates consistently matter and are not mere bystanders in special interest-dominated campaigns;
  • All candidates have the means to get their message out to voters so there is a true competition of ideas; and
  • Candidates can wage successful campaigns without compromising their ability to serve as independent and impartial judges.

By these standards, all of the last three Supreme Court elections in Wisconsin fell far short of the mark and left a great deal to be desired.

Our state has been electing Supreme Court justices for over 150 years. But it’s just been in the last few years that something has gone totally haywire. The last few Supreme Court elections make it clear that wealthy interests aim to take control of our state courts and bend justice to serve their purposes. In 2007, $5.8 million was spent on that year’s Supreme Court race, which is four times more than had ever been spent on a high court election before. Both general election candidates broke the all-time record for fundraising and spending, but ended up being outspent by a handful of interest groups. The 2008 race was even more expensive, with at least $6 million in total spending. While the candidates were outspent by interest groups in 2007, they were overwhelmed in 2008. Four interest groups did 90% of the TV advertising in that race.

Although many breathed a sigh of relief that there was not a repeat performance in 2009, calling this year’s contest an improvement only serves as a painful reminder of how bad the 2007 and 2008 races were. Once a final accounting of campaign fundraising and spending is made, it is virtually certain that a new record for candidate fundraising will have been set. But what was most notably wrong with this year’s race was the fact that one candidate – the incumbent chief justice – had almost all the money and special interest backing while her opponent had virtually none. The voters were shortchanged again.

The Impartial Justice bill would create a far more competitive environment while at the same time freeing Supreme Court candidates and their campaign committees from the money chase and enabling candidates to run for this office without undermining the public’s trust and faith in their ability to serve honorably once elected.

While this legislation has been well crafted and we applaud the bill’s authors for their work, we do ask you to consider making three changes.

First, we believe the number of required qualifying contributions to become eligible for public grants under the bill is too high. As it is currently written, a candidate would need to receive small contributions from 1,000 different donors to qualify. In North Carolina, where a system similar to the one proposed in the Impartial Justice bill is already in place, the number is around 350. Moreover, under Wisconsin’s old WECF system, the first $100 received from any contributor from July 1 of the year preceding the election through the day of the primary is counted toward meeting the qualifying threshold for candidates who wish to participate in the system. It is worth mentioning that a review of contributions to two Wisconsin Supreme Court candidates – Michael Gableman, who won in 2008, and Randy Koschnick, who lost this year – shows that Gableman had received 316 such donations by the February 19, 2008 primary and Koschnick received 112 by the February 17, 2009 primary. It is important to require candidates who wish to receive public financing to demonstrate that they are serious candidates who have a base of support around the state. But setting the qualifying threshold too high may suppress participation. We believe you should lower the number of required qualifying contributions under the Impartial Justice bill to somewhere in the range of 300 to 500.

Second, this bill has been creatively fashioned to prevent the waste of taxpayer money by including a trigger mechanism that provides public funds to candidates only when they need it. Candidates receive relatively small basic grants but are eligible for larger matching grants if they face opponents – either candidates or interest groups – who are spending larger sums of money. This is an excellent feature of this legislation. However, the initial grants candidates are eligible to receive need to be large enough to enable them to reasonably mount a modest statewide campaign. We believe these basic grant amounts – $100,000 in the spring primary and $300,000 for the general election – should be somewhat higher to create an adequate incentive for candidates to participate in the system. We recommend setting the basic grant levels at $150,000 for the primary and $450,000 for the general.

Third, there is no declaration of policy or legislative intent in the bill as it is written, and adding such language would be useful. We propose the following language as an addition to section 11.001 of the Wisconsin statutes:

The legislature finds and declares that an impartial and independent judiciary is vital to the success of our democratic system of government and the rule of law. The legislature finds that the prominent role that large private contributions play in Wisconsin Supreme Court elections undermines the integrity of the judiciary by giving rise to corruption or by creating the appearance that judges are beholden to large donors. Accordingly, a public funding program is established to provide an alternative, non-corrupting, source of campaign finance for State Supreme Court candidates who demonstrate public support and voluntarily accept strict fundraising and spending limits.”

While enactment of the Impartial Justice bill would be a huge step forward, this new system’s impact will not be as great as citizens hope for unless something is done to make sure that interest groups follow the same rules as candidates and abide by longstanding disclosure requirements and campaign contribution limits in Wisconsin law. Currently, voters are being kept in the dark about who is trying to influence the outcome of elections. Four interest groups did 90% of the TV advertising in the 2008 Supreme Court race and controlled most of what voters heard about the candidates because the sponsors of so-called “issue ads” are operating totally outside the law, using money from sources that are off limits to candidates while concealing the origins of that money from the public.

This is why it is so important that the new system created under the Impartial Justice bill be accompanied by the reforms laid out in the Electioneering Disclosure bill. As previously mentioned, these reforms go hand in hand. Neither will work nearly as well in isolation as they do in tandem.

Of course, the problem the Electioneering Disclosure bill addresses is not only a serious threat to the integrity of state Supreme Court elections but also to all other state elections in Wisconsin. Smear campaigns secretly funded by outside interest groups have become commonplace in races for governor and attorney general as well as in a growing number of Senate and Assembly races. In fact, Wisconsin just saw its first million-dollar Assembly race in 2008 and spending in one Senate race a few years ago reached $3 million. In both cases, interest groups considerably outspent the candidates.

The public has a right to know who is trying to influence the outcome of state elections. Senate Bill 43 and Assembly Bill 63 restore real meaning to that right.

Thank you once again for this opportunity to offer testimony on these campaign reform proposals. Enacting the Impartial Justice and Electioneering Disclosure bills would represent the most far-reaching and significant campaign reform in Wisconsin in at least 30 years. You have a once-in-a-generation opportunity and you have it in your power to make history. We urge you to do it, and we look forward to working with you as you do.