The Wisconsin Policy Research Institute

There are currently a few excellent ways to achieve your dream of becoming a Wisconsin Supreme Court justice: find an old case that can be used to paint your opponent as an admiring benefactor of criminals and perverts – and, if that doesn’t work, make one up; hope an incumbent justice dies or resigns and the governor remembers all the favors you’ve done him; marry a Ziegler.

Less effective: run a real campaign and talk about the issues.

Those last couple strategies are, granted, nearly impossible. Candidates for Supreme Court – for good reason – are not supposed to join political parties, comment on any case or issue likely to come before the court or personally solicit contributions.

No wonder almost all of them have, essentially, asked our legislators for tax dollars to run their campaigns – and, if Gov. Doyle really does sign the so-called Impartial Justice Act – might just get them.

The question now is whether any judge who wants to win, or have any chance at all of defining himself or herself, will actually use them. And whether even those of us disillusioned with who gets onto our highest court, and how, should really want them to.

There is ample reason to believe taxpayers would resent being forced to give millions to lawyers running for the bench. As I point out in an upcoming story about the old Wisconsin Election Campaign Fund in Wisconsin Interest (WPRI’s magazine),a 2006 WPRI poll found that 65% of Wisconsinites oppose using tax dollars to finance political campaigns. There might be more support for funding Supreme Court races but that’s far from certain. The percent of taxpayers checking that little campaign donation box on their tax form has decreased from 20% in 1979 to less than 5% last year, after all.

Legislators have proposed increasing the $1 check-off to $3, and want to give most of the money to the new Democracy Trust Fund for Supreme Court candidates. The truth is, though, most of the funding for Supreme Court races will almost certainly come directly from the state’s general fund, where it is currently used for other things.

Still, this is not principally a question of money. It is a question of whether better funding will result in better justice – or justices.

Mike Ellis, the Republican state senator from Neenah and campaign finance reform advocate, was blunt when I called and asked him why he voted against the Impartial Justice legislation.

“It’s a piece of (excrement),” replied the veteran lawmaker.
Candidates who sign up for public financing will initially be given $100,000 for a primary and $300,000 for a general election. They can receive an additional $900,000 in the general election if an opponent starts spending gobs of privately raised cash and can get even more money if third-party groups start targeting them. One of Ellis’ big criticisms is that those third parties can spend way over twice as much as a candidate taking a public grant before that candidate is eligible for additional public money to defend himself – “a huge disincentive to take” public dollars in the first place, Ellis believes. The only ones who will agree to take the public money in races where spending by candidates and other groups can reach $5 million or $6 million, in other words, may well be those doomed to lose.

The old Wisconsin Election Campaign Fund (which gives small amounts of tax dollars to legislators and others in the state) is a very different animal than what is being proposed now for Supreme Court candidates. But it suffers from the very thing Ellis foresees for the Democracy Trust Fund. It is used only by those who don’t really have a chance of winning, or those who are in no real danger of losing.
There should be another concern, though.

The Impartial Justice Act limits the size of private donations to candidates who don’t take the public money. Committees and individuals who can currently donate $8,000 or $10,000 will only be able to contribute $1,000.

Common sense says they aren’t going to stop giving, however. More likely, they will donate to groups either directly or indirectly supporting their candidates – groups that can easily drown out the voices of the candidates themselves, perhaps through issue ads.

Reformers like Ellis have argued that Supreme Court candidates should be given even more money to combat issue ads – a slope that could be pretty slippery, not to mention expensive. Others note that any sort of reform is better than the current mess, which discourages good candidates from even running, let alone getting elected.
Reforming a bad process doesn’t necessarily make it any better, the thing is.

And it could make it worse.

-November 16, 2009

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