Justice Bradley
Right now, not many voters are aware of the race for a seat on the Wisconsin Supreme Court between incumbent Justice Ann Walsh Bradley and Rock County Circuit Court Judge James Daley on April 7.
But if this race is like other recent Supreme Court races in Wisconsin, then it’s going to ramp up quickly with an influx of ads underwritten by out-of-state special interest groups with anonymous donors who typically spend more than the candidates themselves.
But instead of flooding the airwaves with the stereotypical campaign ad featuring a judge leaning against a squad car, vowing to be “tough on crime,” expect a new meme in this race—whether the candidate supports Gov. Scott Walker’s agenda, an unabashedly partisan note in a nonpartisan race for an independent branch of government.
“It’s going to heat up very shortly,” said Jay Heck, executive director of Common Cause in Wisconsin. “This is the same kind of race we’ve seen several times before, where most of the action, a dump of money, occurs in the last weeks.”
Big Money’s Influence on the Court
Big money is a relatively new factor in state Supreme Court races, Heck said.
Back in 2007, when special interest money became a major player, these shadowy groups spent $3 million, according to the Wisconsin Democracy Campaign, the vast bulk of it coming from the right-wing Wisconsin Manufacturers and Commerce (WMC) and Wisconsin Club for Growth in support of Annette Ziegler, who beat Linda Clifford. The 2008 race between Michael Gableman and Louis Butler attracted $3.1 million from outside groups, again with WMC topping the list of donors. The right-wing groups mostly sat out Chief Justice Shirley Abrahamson’s race in 2009, but they came back with a vengeance in 2011, when Justice David Prosser ran against JoAnne Kloppenburg and outside special interests spent $4.5 million—$2.7 million going to support Prosser and $1.8 million to back Kloppenberg. The 2013 race between Justice Patience Roggensack and Ed Fallone generated $1.2 million in outside spending, more than a million of it coming once again from the WMC, Wisconsin Club for Growth and the Wisconsin Realtors Association, according to the Wisconsin Democracy Campaign.
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What’s notable about these donations is not just their size but their overt influence on the court. In 2010, the justices underwritten by the right-wing groups adopted an ethics rule that allows Supreme Court justices and judges at all levels to accept donations from entities with cases before the court, as well as their attorneys.
That rule was written by the WMC and the Wisconsin Realtors Association and adopted by the conservative majority verbatim.
That rule flies in the face of a prior U.S. Supreme Court decision in a big-money case in West Virginia, Caperton v. Massey, in which a coal mining magnate spent $3 million on a Supreme Court candidate, who won his election. Not surprisingly, when the donor’s case came before the court, the bought-and-paid-for justice cast the deciding vote in his benefactor’s favor. In 2009, the U.S. Supreme Court ruled that the justice’s participation in the case presented a “serious risk of actual bias” and violated the opposing party’s right to a fair trial.
Wisconsin’s judicial recusal rule doesn’t comply with the Caperton ruling, argues legal ethics experts at the nonpartisan Brennan Center for Justice. They wrote that a more stringent recusal standard would ensure that cases are decided with no hint of impropriety and allow campaign contributors to exercise their First Amendment rights.
This isn’t just an abstract argument among scholars. It’s playing out in the state Supreme Court right now.
The Brennan Center submitted a friend of the court brief to the state Supreme Court in the cases involving Walker and the allegedly independent special interest groups being investigated in the long-running John Doe.
These right-wing groups spent more than $10 million on the four-member conservative majority, according to the Center for Media and Democracy. Yet the four justices aren’t recusing themselves from the John Doe cases.
A Higher Standard
The lone justice who has recused herself is Justice Ann Walsh Bradley, who is up for re-election on April 7. While she hasn’t benefited or suffered from the right-wing money machine and typically votes as part of the three-member liberal minority on this high court, her son is a partner in a law firm with one of the attorneys involved in the cases.
“I was concerned that there would be an appearance of partiality,” Bradley said when she visited the Shepherd’s offices last week. “Fundamentally, who we are and what we are as a court is to make sure we maintain the public support and confidence of the people.”
Ethics and impartiality are playing a big role in Bradley’s campaign for re-election. She was in the minority during the 2010 recusal rule vote and she is going to great lengths to maintain her impartiality during the campaign.
She is touting her bipartisan support—former First Lady Sue Ann Thompson and ex-state Sen. Dale Schultz, both Republicans, as well as Democrats, have endorsed her—and she isn’t accepting any donations from attorneys or parties with cases before the court, although the state’s lax ethics rules could allow her to do so. She hasn’t had any contact with the Democratic Party, she told the Shepherd, besides attending one Wausau event honoring a friend.
“I have grave concerns about the influx of out-of-state special interest money,” Bradley said. “One of the reasons I’m running is to say no to out-of-state special interest money. Wisconsin has a problem.”
Bradley’s approach is vastly different than her opponent’s. Daley, who declined to be interviewed for this article, has used state Republican Party staff and support, something highly unusual if not unprecedented in a nonpartisan race for the state’s high court. He’s appeared at Republican Party events and his campaign has encouraged third parties to jump in and start spending.
“There appears to be no concern on the part of his campaign and therefore of Judge Daley to be nonpartisan and impartial,” Common Cause’s Jay Heck said. “That ought to be alarming to voters.”
According to a wispolitics.com report, a Daley aide told Republican supporters, “The saving grace for conservatives has always been our third-party groups. We don’t coordinate with them, but they watch our fundraising reports. They’re smart. Most of them are businessmen.”
Bradley had sharp words for Daley’s campaign strategy.
“That’s sending judicial elections in the wrong direction,” Bradley said. “What we need in this state is to have special interest groups play virtually no role.”
The candidates are also at odds over support for Walker’s political agenda. Daley has written op-eds praising the state’s controversial voter ID law—another highly unusual if not unprecedented step, since the law is currently before the U.S. Supreme Court and could come back to the state Supreme Court—and he has knocked Bradley for opposing that law as well as Act 10, Walker’s major anti-union law.
Bradley doesn’t think much of that line of attack.
“I was a bit taken aback that my opponent created an attack ad against me and he was taking me to task for not being compliant with the reform agenda coming out of Madison,” Bradley said. “It caused me to pause because I think that shows a lack of appreciation, or at least a very different vision than I have, of the correct role of the Supreme Court. We’re not supposed to be in favor of or against anyone’s agenda. Our only agenda is to the constitution and the people of this state.”
Bradley herself has sponsored an ad attacking Daley’s record. Last fall, Daley gave a light sentence to a child abuser, which Bradley says indicates a lot about his character. Her ad features a blistering indictment of Daley from right-wing radio host Mark Belling, saying that Daley was “unfit to serve.”
Although it’s been reported that WMC will sponsor ads in the race backing Daley or bashing Bradley, none have surfaced just yet. But Bradley is bracing for an onslaught of third-party ads in the final weeks of the campaign.
“Past is prologue,” Bradley said. “That’s what I expect will happen. Am I concerned about it? Yes. But I knew this from the moment I made my decision to run, realizing full well this was probably going to happen. And even with that, knowing that I can’t control special interest groups, knowing that they’ll spend whatever they think they need to defeat me, I don’t care. I’m not backing down.”
Even without the benefit of partisan support, Bradley is enjoying a more than 2-1 fundraising advantage over Daley.
Anti-Abrahamson Referendum on the Ballot
In addition to the state Supreme Court race, on April 7 voters will be asked to weigh in on a proposed constitutional amendment that would change the way the high court’s chief justice is selected. For the past 126 years, the most senior member automatically became chief justice. But a Republican- and WMC-backed proposal would change the state constitution to allow the justices to select their own chief. Since it’s a constitutional amendment, the proposal needs to be ratified or rejected by state voters.
Since there is no real clamoring from the public for this change, it’s widely seen as a personal attack on Chief Justice Shirley Abrahamson, a nationally well-respected jurist who has stood up to the conservative majority at almost every turn.
Bradley, who often votes with Abrahamson, is strongly opposed to the amendment, calling it a “tool for political payback” in last week’s interview.
“In 2009 the people of this state overwhelmingly reelected Shirley Abrahamson to a 10-year term,” Bradley said. “They knew she was chief justice. And to now try to undo the vote of the people and instead allow four justices on the Supreme Court, or a majority of the court, to undo the will of the people I think is heading in the wrong direction. I don’t think the people of this state want that.”
Common Cause’s Jay Heck called the amendment referendum “an all-out attack on the minority of the Supreme Court. It brings to mind the old adage, ‘It’s not enough to win; others must lose.’ They not only want to have a majority but they want to further cripple the minority.”
