March 13, 2023
by Matthew Rothschild, Executive Director
(These were Matt’s prepared remarks for the panel on judicial recusal that the League of Women Voters of Dane County sponsored on March 9, 2023.)
I’d like to thank the Dane County League for inviting me to be on this panel. You know I love the League and all that you do. It’s also a real honor for me to be on with Justice Louis Butler, who I’ve got great admiration for.
I really want to hear what Justice Butler has to say, so let me just try to set the table a little bit.
20 years ago, when Pat Roggensack was first running for the Wisconsin Supreme Court, and she’s the justice who is retiring right now, the amount of outside money in that race was $27,000. So far, in the current race to replace her, the amount of outside money is already at $10 million, which is double the previous record set back in 2020.
The outside money, and the money to candidates themselves, has just gone through the roof. I’m expecting the total amount to reach between $30 and $40 million, which would be a three-fold or four-fold increase from the previous record.
So how did we get here?
I’m going to mention three U.S. Supreme Court cases and one Wisconsin Supreme Court case for context. And then I’ll mention the horrendous rewrite of our campaign finance law in 2015. And then I’ll briefly try to pinpoint when the big money first exploded here.
But let me give you the overall picture: What we’re witnessing this year in Wisconsin is the sad and tardy eulogy for McCain-Feingold and for any meaningful attempt to limit how much the super-rich and corporations can spend to influence our elections. As a result, they have a much larger say than average citizens over who gets elected, what laws are passed and what policies are pursued. A lot of the big money is coming from outside of Wisconsin, which also raises the question of whether we have self-rule here.
On to the court cases.
In 2007, in Wisconsin Right to Life v. FEC, the U.S. Supreme Court ruled that so-called issue advocacy groups couldn’t be limited in what they could spend by the McCain-Feingold law. This allowed dark money groups to spend unlimited amounts of money so long as they didn’t tell you who to vote for or not vote for and so long as they didn’t coordinate with candidates. They could just hide behind bushes and throw mud at candidates, and they don’t have to disclose who’s paying for the mud.
Then, infamously in the Citizens United Case of 2010, the U.S. Supreme Court ruled that corporations and other groups and individuals could spend unlimited amounts of money to explicitly tell you who to vote for and not for, so long as they didn’t coordinate with the candidates.
And then in 2014, in the McCutcheon decision, the U.S. Supreme Court ruled that aggregate limits on how much individuals could give to candidates and PACs and parties were also unconstitutional. The case involved an Alabama businessman named Shaun McCutcheon who had already spent the then limit of $123,000 on candidates and committees but wanted to spend more and insisted that his First Amendment rights were being trampled on, and the court agreed.
So the U.S. Supreme Court, with these three decisions, has essentially said that there are no limits whatsoever on how much a super rich individual in the United States can spend to influence the outcome of our elections.
Here in Wisconsin in 2015, two additional things happened that made things even worse.
First was the Wisconsin Supreme Court’s decision in the John Doe II case, which was investigating Scott Walker for coordinating with outside groups while he was campaigning for office, which was illegal under a Wisconsin statute at that time. Walker’s pals on the Wisconsin Supreme Court gave him a get out of jail free card by claiming that the statute was unconstitutional under the First Amendment of the U.S. Constitution, claiming that it forbids states from banning coordination between candidates and so-called issue advocacy groups. The U.S. Supreme Court has never said that, but that is now the law here in Wisconsin. Kelly, for instance, could coordinate with Wisconsin Right to Life and tell them what ads to run! He’s cozy with them. He used to work for them, so it’s not a stretch to believe that he’d be doing that.
In that John Doe II case, by the way, the Special Prosecutor Francis Schmitz requested that two justices recuse themselves from the case because they had a conflict of interest. The two justices were David Prosser and a guy named Michael Gableman, whom Justice Butler is very familiar with.
The Special Prosecutor noted that both Prosser and Gableman had benefited from extraordinarily large donations from two of the groups that the Special Prosecutor was investigating: Wisconsin Manufacturers and Commerce and the Club for Growth. Combined they had spent $2,260,000 to help Gableman get elected, and $1.6 million to help Prosser get elected.
Not only did they not recuse themselves. They voted to fire the Special Prosecutor!
Also in 2015, the Republicans in the Wisconsin Legislature rewrote our campaign finance laws to double the amount of money the super-rich could give to their favorite Supreme Court candidate, from $10,000 to $20,000. And they tore down the de facto limit on donations to the political parties, which was $10,000 and they didn’t replace the ceiling at all. Now the sky’s the limit on what an individual can give to the parties, which makes a joke of having a limit on direct donations to candidates. Because if you’re for Judge Janet, you could give $20,000 to her campaign, and then $2 million to the Democratic Party of Wisconsin, which could then turn around and give $2 million to Judge Janet’s campaign. Same thing if you’re for Kelly: You could give his campaign $20 grand and then the Republican Party of Wisconsin $2 million, which could then give that amount to the Kelly campaign. This turns the political parties into little more than glorified laundromats.
So that’s the context.
But in looking over the past 20 years of Wisconsin Supreme Court races, what struck me is that the jump in spending actually happened before some of these decisions.
Here’s a personal anecdote. I used to live a block from West High, and I would frequently shop at the Regent Co-op, which we used to call Joe’s, after the former owner. Well, one day I was at Joe’s and Linda Clifford, my neighbor, was in line ahead of me. A highly respected attorney, she was running against Annette Ziegler for a spot on the court. And so I asked her how the race was going. And she told me, “I’m getting killed by all the outside money.”
She lost that race in 2007, and she was right. The outside money was brutal: In this one, outside groups spent $3.1 million – more than 100 times what they spent in 2003. Wisconsin Manufacturers & Commerce itself shelled out $2.2 million for Ziegler, and the rightwing Club for Growth spent $400,000 for her. The liberal Greater Wisconsin Committee spent $400,000 for Clifford.
Then in 2008, outside groups spent $4.8 million when the aforementioned Michael Gableman challenged Louis Butler, the first African American ever to serve on the Wisconsin Supreme Court. The Gableman campaign ran hideous ads against Butler and was aided by $1.8 million in expenditures by Wisconsin Manufacturers & Commerce and $500,000 from the Club for Growth. The Greater Wisconsin Committee poured in $1.5 million for Butler, but it was too little, too late.
The money that started to explode in Wisconsin in the middle of the first decade of the 21st century was part of a nationwide trend: Big Business groups mounted a concerted effort to grab control of state courts:
“State Supreme Court elections attracted record sums from business interests,” noted a report from the Brennan Center and two other groups.
Former U.S. Supreme Court Justice Sandra Day O’Connor put it bluntly that same year:
“In too many states, judicial elections are becoming political prizefights where partisans and special interests seek to install judges who will answer to them instead of the law and the constitution.”
For a relatively small investments, big business coalitions and rightwing ideological groups understood that they could gain control of state supreme courts and get what they wanted from them. And so they threw themselves into this task, succeeding here in Wisconsin and elsewhere. Not to be outdone, liberal groups countered this threat by raising tons of money of their own, and off to the races we went.
So that’s where we are today.
The leading outside groups in the race so far, by the way, are:
A Better Wisconsin Together at $3,784,000.
Fair Courts America at $3,350,000, which is funded by Richard Uihlein.
It looks like it’s coming down to a race to see if Ben Wikler can speed dial billionaires faster than Richard Uihlein can transfer money into his PAC.
And that’s not how we should determine who sits on the Wisconsin Supreme Court.