A new trend?

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Washington County Circuit Court Judge Annette K. Ziegler celebrates her victory in the state Supreme Court race at the Old Courthouse Museum in West Bend. Ziegler received 58 percent of the vote to defeat Madison attorney Linda M. Clifford in the April 3 election. Ziegler will succeed retiring Justice Jon P. Wilcox on Aug. 1. Wisconsin Law Journal Photo by David Ziemer

It was the most expensive state Supreme Court race in Wisconsin history, but ultimately the only numbers which mattered were the final vote tallies.

In the general election last week, Washington County Circuit Court Judge Annette K. Ziegler earned more than 473,000 votes or 58 percent, and defeated Madison attorney Linda M. Clifford who received more than 338,000 votes.

But how much of an impact did the reported $1.7 million in combined candidate funds or the negative tone of the campaigns have on the outcome?

Ultimately it had very little, according to Mordecai Lee, professor of governmental affairs at the University of Wisconsin-Milwaukee.

Money for Nothing?

Lee likened the excessive spending to an arms race where one side reacted to the other and ultimately cancelled each other out.

According to the most recent pre-election spending reports posted by the State Elections Board, which charted the candidate’s fundraising through March 19, Ziegler had raised more than $931,000 and Clifford had raised roughly $767,000.

The two combined to spend more than $1.4 million, which broke the record of $1.3 million spent during the 1999 Supreme Court race. The next campaign continuation report, which will have final campaign spending figures is due by July 20 and will cover spending from March 20 – June 20.

Spending aside, Lee said there were two predominant factors which likely propelled Ziegler to victory, her experience as a judge and her prevailing win in the primary.

“It’s generally a rule of thumb — a sitting judge who did better in the primary will probably win,” said Lee.

Ziegler, 43, did invest around $150,000 in pre-primary advertising, three times the amount of Clifford and she received more than twice the votes of Clifford in the primary election.

Though the candidates’ financial influence may have only gone so far, special interest group spending escalated exponentially during the campaign.

Clifford’s campaign alleged that Wisconsin Manufacturers & Commerce pumped $1.45 million into ads supporting Ziegler. The Greater Wisconsin Committee is thought to have spent at least $300,000 on ads favoring Clifford and opposing Ziegler.

“I think this type of spending was a determinative factor because it was so lopsided,” said Clifford, who claimed outside interest groups spent more than five times the amount of money on advertising for Ziegler.

Clifford, 58, cited a national trend of third-party groups investing in elections with their own agendas in mind.

Lee suggested this election served as a “textbook” case to possibly reevaluate campaign finance protocol with regards to outside spending.

“I was very surprised that outside groups were so brazen in essentially saying to voters, ‘We want to jigger the outcome and effect future court decisions by influencing which judges will be on the case,’” said Lee. “That’s not a very solid judicial system.”

During her post-election speech, Ziegler pledged to work hard to be a judge, and not a legislator.

Negative Tone

Despite a dominant victory in the primary, Ziegler had come under fire in the weeks leading up to the general election, heightening a trend by both candidates which focused on negative campaigning.

Clifford’s campaign had questioned Ziegler’s decision to rule on cases involving West Bend Saving Bank, where her husband, J.J. Ziegler, is a member of the board of directors.

Ultimately, Lee did not believe the controversy was enough to swing voters away from Ziegler, whom he credited with developing shrewd damage control ads.

“Evidently the issue was not much of a factor and I think her commercials effectively neutralized the substantive issues,” said Lee. “She was basically on the defensive for the entire air wars and in my opinion, did a brilliant job.”

Ziegler, who is to replace Justice Jon P. Wilcox on Aug. 1, is still subject to potential sanctions from the Wisconsin Judicial Commission, which is set to determine on April 20 whether to investigate Ziegler’s actions in several of the West Bend cases.

“It’s still a serious issue for the commission and I’m sure everyone is going to play it straight,” said Lee, who did not venture a guess as to whether any sanctions would prohibit Ziegler from taking her seat on the Supreme Court.

James Alexander of the Wisconsin Judicial Commission stated that the matter is expected to be reviewed at the April 20 meeting, but could not speculate as to the possible outcome.

Clifford insisted that an investigation will be conducted and that Ziegler will “enter her tenure with a black cloud over her head.”

Ziegler did not
return a reporter’s phone calls prior to deadline.

Throughout the campaign, both candidates resorted to tactics often seen in partisan elections, not judicial races.

Lee called the trend the “partisanation” of judicial elections and believed this year’s Supreme Court race mirrored the gubernatorial race last fall.

“Right down to the tone, the adjectives and vocabulary used,” said Lee. “It’s awful that two candidates who represent different ideological philosophies cannot have a frank and robust debate without the negativity.”

In her election night speech, Ziegler said that voters looked beyond the destructive tactics.

“Today, I think the voters made clear that they reject negative campaigns and that those don’t work and that instead they want someone who’s a judge and who’s practiced criminal law,” said Ziegler.

Clifford said that the negative ads were solely processed from Ziegler’s supporters and called her opponent’s campaign methods “juvenile.”

“I don’t define anything I said during the campaign as negative because it was based in facts and documentation which is a far cry from the kind of messages my opponent offered,” said Clifford.

Next Year

With another Supreme Court race set for 2008 when Justice Louis B. Butler Jr.’s current appointment expires, what does the tone of the 2007 race indicated about the next one.

Lee initially expected a more subdued election at least at the Supreme Court level.

“I think you see the big spenders come out in swing races, which this year’s was,” said Lee. “Justice Butler, though not an elected incumbent, is an incumbent nonetheless so it’s possible the race could be a cake walk for him.”

As far as a continuation of negative campaigning in judicial elections, Lee expected the practice to gradually surface in other court races.

“It’s a genie in the bottle type scenario where once it’s out there, it’s tough to get back in,” said Lee. “What that means is future Supreme Court races will be like this and probably seep down into the appellate courts and even the circuit courts.”