Recent proposals to limit or abolish state Supreme Court elections attempt to remedy public perception that the high court is a political hotbed.
By limiting Wisconsin justices to single, 16-year terms, as proposed by a State Bar task force, or by eliminating Supreme Court elections in favor of an appointment process, as proposed by two state senators, attempted reformers seek to limit the election process.
But the part of the election process that causes the most concern is campaign spending, which state lawmakers are working to increase, not decrease.
Assembly Bill 225, passed by the state Assembly in June, would double the allowable amount of money individuals or PACs can contribute to someone campaigning for state office.
The bill’s author, Rep. Jeff Stone, R-Greendale, argued the move would strengthen a candidate’s ability to shape his or her message to the public. In light of the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, he said, there are few options to make campaign spending laws more equitable.
“The Supreme Court says money is equivalent to free speech,” Stone said, “and I want to at least be able to compete and have my voice heard.
“My frustration is, as a candidate, I’m limited by how I can engage in the campaign.”
But many in the state argue that already high spending on campaigns is at the heart of the public’s perception that the Wisconsin Supreme Court is populated not by justices who focus on the principles of the law, but rather by candidates who focus on the sources of contributions.
“Whether or not it does influence the outcome and whether or not it actually influences a judge’s approach to the bench, the bottom line is it does affect the public’s perception of the court,” said 2007 Wisconsin Supreme Court candidate Linda Clifford, who lost to incumbent Justice Annette Ziegler. “And, for that reason, something should be done.”
Marquette University law professor Ed Fallone, who lost to incumbent Justice Pat Roggensack in the election in April, said lawmakers should challenge Citizens United by devising judicial-campaign contribution limits that would stand up in court. In doing so, Wisconsin lawmakers would be declaring that imposing such limits in judicial races serves a compelling public interest.
“Many people think Citizens United has our hands tied,” Fallone said. “I actually think there is room to regulate independent money more.”
Challenging a U.S. Supreme Court ruling is no small thing, however, particularly when it would start at the state level, where the Legislature’s strong Republican base and Gov. Scott Walker probably would work against any efforts to curb campaign spending. And even if a revised push to limit campaign contributions went back before the high court, the five-member majority that ruled in Citizens United is still on the bench.
It’s a long shot, but it’s a shot worth taking before limiting or eliminating the public’s right to vote.