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Candidates limited by public financing

While the two candidates for State Supreme Court differ on their views of how well the public financing laws are working, they agree on one problem posed by the campaign spending limits.

Neither can get enough yard signs for their respective constituents.

Both incumbent Supreme Court Justice David Prosser and assistant attorney general JoAnne Kloppenburg are running their campaigns under the public campaign finance structure established by the 2009 Impartial Justice Bill. Each candidate received $100,000 for the primary and an additional $300,000 leading up to the April 5 election.

But this could be the first and only race run with those limits. Gov. Scott Walker’s 2011-13 budget plan eliminates public money for state Supreme Court races, leaving only a voluntary $3 income tax check-off to support the program.

Currently, any lapse in the money generated through the check-offs placed in the Democracy Trust Fund is offset by the state’s general fund to meet the spending limits.

“I certainly have not asked the governor to put this in the budget,” said Prosser, despite his objections to the program.

Prosser argued that the spending limits put him at a disadvantage as the incumbent, in that they neutralize his edge in familiarity with voters and his ability to raise money.

Candidates are capped at privately raising $20,000, which Prosser’s campaign has done, and staff are now in the process of returning excess donations.

The restrictions, Prosser said, have made it difficult to run an effective statewide campaign, comparable to Chief Justice Shirley Abrahamson’s 2009 re-election bid in which she raised $1.5 million and also didn’t have to spend time or money on a primary.

“People say, ‘we’ve got to have yard signs’ and I’ve said ‘well, I hope we still have a yard sign for you,” Prosser said. “Am I fan of the law? No.”

According to the Wisconsin Democracy Campaign, figures from the Wisconsin Government Accountability Board’s Elections Division revealed that through the end of February, Prosser had spent $150,808 and Kloppenburg $122,026 on their respective campaigns.

Kloppenburg said she is a fan of the public financing limits. At this point, she said, the system is doing just what it is supposed to be doing: creating a level playing field in terms of campaign spending.

“I think there is much more freedom with public financing because candidates can take their message to everyone and not spend every hour of every day raising money,” Kloppenburg said. “It is very liberating.”

While the law has succeeded in providing candidates with public money, another element designed to curtail third-party spending has fallen short.

Outside investments for or against a candidate are supposed to be disclosed and subject to matching funds.

But ongoing litigation has prevented that part of the law from taking effect, though outside spending has been limited to this point. According to the Wisconsin Democracy Campaign, only Wisconsin Club for Growth has spent money on issue ads, approximately $320,000 in support of Prosser.

That could change in the final weeks prior to the election, as another piece of legislation, the recently signed budget repair bill, is a heated issue among voters.

The legislation crippled collective bargaining rights for state union employees and also mandated increases in worker contributions to pension and health care benefits.

After Walker signed the bill into law March 11, Democrats and unions pledged to mobilize in an effort to unseat Prosser, a former Republican State Assemblyman.

In a low turnout election, union efforts to persuade voters could be significant, said Rick Esenberg, Marquette University Law School professor.

The strategy could backfire, however, he said, and allow Prosser to “put on the mantle” of an independent judiciary.

University of Wisconsin Political Science Professor Charles Franklin agreed there is a risk in trying to over-politicize a non-partisan race.

“As a non-partisan office, the court is not directly involved in the governor’s budget bill, and so it would require an explanation to voters why a vote against Justice Prosser is a vote against Walker,” he said.

At this point, only Club for Growth has publicly invested in either candidate and Franklin said time will tell as to whether unions spend money linking Prosser to Walker.

“If so, then we are in an era of political conflict without limits,” Franklin said.

Prosser said people criticizing his record as an impartial justice wouldn’t get very far, and he doesn’t view himself as a target of labor unions.

“Labor cannot make a compelling reason to vote against Dave Prosser,” he said. “To criticize me for something that someone else has done is really irrational.”

Kloppenburg said passage of the union bill raised the profile of the Supreme Court race, but added that it would not impact her campaign strategy.

“Partisanship belongs in the Legislature and not the courts,” she said. “The judicial branch is where decisions get made separate from partisanship and the Supreme Court should be above the fray.”

Jack Zemlicka can be reached at jack.zemlicka@wislawjournal.com.

Justice Prosser’s record on collective bargaining

Since Republican Gov. Scott Walker signed legislation March 11 stripping nearly all collective bargaining rights for state employees, union supporters have vowed to vote against incumbent Supreme Court Justice David Prosser, a former Republican state assemblyman, in the April 5 election.

The state Supreme Court has addressed collective bargaining-related issues 17 times since Prosser joined the court, and here is how he voted in each instance:

Milwaukee Journal Sentinel v. DOA, 2009 WI 79.
The court held 6-1, with Prosser in the majority, that the State can’t amend the Public Records Law through a collective bargaining agreement with the state employees union.

Baldwin-Woodville Area School District v. West Central Ed. Ass’n., 2009 WI 51.
The court held 6-1, with Prosser in dissent, that an arbitrator reasonably found that an employee’s grievance was timely.

Loth v. City of Milwaukee, 2008 WI 129.
The court unanimously held that city retirees’ health insurance plan is governed by the plan in effect on the date of retirement.

Racine County v. IAM Dist. 10, 2008 WI 70.
The court held 4-3, with Prosser in the majority, in favor of the employer, that the arbitrator exceeded his authority.

Kocken v. Wisconsin Council 40, 2007 WI 72.
The court held 4-3, with Prosser in dissent, that a sheriff’s proposal to privatize the preparation of meals for the county jail is subject to collective bargaining.

Milwaukee Police Ass’n. v. Hegerty, 2005 WI 28.
The court unanimously held that a collective bargaining agreement trumps state statute regarding when overtime must be paid.

City of Madison v. WERC, 2003 WI 52.
The court held 4-3, with Prosser in the majority, that a fire chief’s decision to return a firefighter, who was promoted on a probationary status, to his previous rank was not subject to arbitration.

Kraus v. City of Waukesha Police, 2003 WI 51.
The court held 6-1, with Prosser in the majority, that a police officer promoted on a probationary basis does not possess a constitutionally protected property interest in the higher rank.

Bruno v. Milwaukee County, 2003 WI 28.
The court unanimously held that former county employees who qualified for deferred vested pensions are eligible for a military service pension credit.

Pasko v. City of Milwaukee, 2002 WI 33.
The court unanimously held that a union is not barred from filing suit, even though a prior action over the same matter had been filed by its members.

Dodgeland Education Association v. WERC, 2002 WI 22.
The court held 4-3, with Prosser in the majority, that a decision by the Wisconsin Employment Relations Commission — that teacher preparation time is a permissive, rather than mandatory, subject of bargaining — is entitled to great weight deference, and the decision had a rational basis.

Milwaukee District Council 48 v. Milwaukee County, 2002 WI 65
.
The court unanimously held that a county may not deny a pension to an employee whose service has satisfied the minimum for a deferred vested pension without a fault hearing.

Roth v. City of Glendale, 2000 WI 100.
The court unanimously held that retirees’ fully-paid health insurance benefits are presumed to be vested in the absence of evidence to the contrary.

Brauneis v. LIRC, 2000 WI 69.
The court unanimously held that an employer’s lockout of its employees entitled them to unemployment compensation.

German v. DOT, 2000 WI 62.
The court unanimously held that state patrol officers may file overtime and hour claims in circuit court.

Eau Claire County v. Teamsters Union 662, 2000 WI 57.
The court held 5-2, with Prosser in dissent, that the circuit court is not the exclusive forum for county law enforcement officers to challenge an order of a civil service commission.

Antisdel v. City of Oak Creek, 2000 WI 35.
The court unanimously held that a police officer promoted on a probationary basis is entitled to a just cause hearing before demotion.

– David Ziemer

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