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Targeting politics on the bench

By: Dan Shaw, [email protected]//July 22, 2013//

Targeting politics on the bench

By: Dan Shaw, [email protected]//July 22, 2013//

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Term-limit proposal raises questions at the state’s high court

Former Wisconsin Supreme Court candidate Linda Clifford sits outside of the state Capitol. Clifford said campaign donations had a “decisive” effect on the 2007 election in which she lost to incumbent Justice Annette Ziegler. (Staff photo by Kevin Harnack)
Former Wisconsin Supreme Court candidate Linda Clifford sits outside of the state Capitol. Clifford said campaign donations had a “decisive” effect on the 2007 election in which she lost to incumbent Justice Annette Ziegler. (Staff photo by Kevin Harnack)

Former Wisconsin Supreme Court candidate Linda Clifford had a target on her back from the early days of her 2007 campaign.

Right at the start of Clifford’s unsuccessful bid to unseat Justice Annette Ziegler, Clifford’s friend was attending a meeting in Virginia of the Property Casualty Insurers Association of America when he learned of a plan “to target Linda Clifford and take her out,” Clifford said. It wasn’t long after that, she said, that money from national groups started to pour in for her opponent.

“It played out with a lot of money,” Clifford said. “I could not ever expect to come in to the race with similar groups to support me.”

The $5.8 million spent on the ensuing contest made it, at the time, the most expensive Supreme Court race in Wisconsin history. It also left Clifford with the conviction that campaign donations had a “decisive” effect on the election’s result.

A recent proposal from the State Bar of Wisconsin’s Judicial Task Force seeks to curtail much of the politicking found in state Supreme Court elections.

The bar’s four-member task force in June presented its plan to limit state Supreme Court justices to single, 16-year terms. Wisconsin currently elects justices to 10-year terms and places no limit on the number of times one can be re-elected.

By taking away the possibility of re-election, the plan’s backers are trying to eliminate suspicions that a justice ruled a certain way to avoid offending powerful supporters, said Joe Troy, leader of the Judicial Task Force. The proposal, he said, also could help improve relations among the justices by preventing them from resenting a newcomer who defeats a favorite bench mate.

But even before the State Bar’s Board of Governors has voted on whether to champion the proposal — a vote is probable at the group’s September meeting — critics are making their opinions heard. Some say instituting a term limit would entail a lot of work, such as amending the state’s constitution, for little reward. Even if the limits were adopted, observers such as Ed Fallone, who recently lost a bid for the Supreme Court, say outside groups would remain free to spend as much as they want on candidates’ initial campaigns for the bench.

Justice Pat Roggensack, who beat Marquette University law professor Fallone in their April race, agreed, saying, “A single, 16-year term, I don’t know what that’s supposed to solve. I don’t think that will create an opportunity for less spending, people will just spend more at the outset.”

Others say there is something fundamentally undemocratic about extending term lengths and eliminating the possibility of re-election. And then there are those who want to take voters out of the equation altogether, leaving the choice to whoever is in the governor’s office or to a group appointed to that task.

Troy said he has two responses to those critics. For one, he said, no selection system is perfect. Appointments do not prevent the U.S. Supreme Court from being riddled with politics, he said, and there would always be the question of who would serve in any group responsible for selecting justices.

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Two, he said, proponents of change have to consider not only what is best, but what is possible. Amending the Wisconsin Constitution, Troy said, can’t be done without approvals by the state Legislature in two separate sessions and then by voters throughout the state.

“All sides have to say there is merit in this proposal,” Troy said. “But they also have to believe that it doesn’t hurt them in some way or put them at a political disadvantage.”

Mike McCabe, executive director of the Wisconsin Democracy Campaign, works at his Madison office. He said recent races for the state Supreme Court have been won by candidates who received much of their support from conservative groups.
Mike McCabe, executive director of the Wisconsin Democracy Campaign, works at his Madison office. He said recent races for the state Supreme Court have been won by candidates who received much of their support from conservative groups.

Lawmakers in the Republican-controlled state Legislature are showing few signs of warmth toward the term-limit proposal. Kit Beyer, a spokesman for Assembly Speaker Robin Vos, R-Burlington, said Vos is generally in favor of giving voters more of a say in state affairs, not less. A spokesman for Senate Majority Leader Scott Fitzgerald, R-Juneau, said Fitzgerald had not given the proposal much thought.

Part of the difficulty for proponents, said Mike McCabe, executive director of the Wisconsin Democracy Campaign, will be in persuading Republicans to change a system that serves them fairly well.

Recent races for the state Supreme Court have been won by candidates, he said, that received much of their support from such conservative groups as Wisconsin Manufacturers and Commerce and the Wisconsin Club for Growth, and thus were widely believed to lean to the right.

Ed Fallone, a Marquette University law professor, lost in a race this year against Wisconsin Supreme Court Justice Pat Roggensack.
Ed Fallone, a Marquette University law professor, lost in a race this year against Wisconsin Supreme Court Justice Pat Roggensack.

“Practically, given the political landscape, it does not seem likely the problems that plague our Supreme Court will be solved in the short term,” McCabe said “It is hard to see where real reform will come from.”

To make a meaningful difference, he said, any change would have to curtail spending on Supreme Court elections. But lawmakers now appear disposed to act in the opposite direction.

Assembly Bill 225, passed by the state Assembly in June, would let the campaigns of candidates for state office collect at least double from individuals or PACs what they can now. If passed unchanged by the Senate and signed by the governor, the bill would let Supreme Court candidates receive as much as $20,000, up from $10,000, from an individual donor, and $18,000, up from $8,625, from a political committee.

Candidates for the court can raise money in much the same way as those running for other state offices, with one important exception: Justice contenders cannot solicit money themselves.

The ban exists to prevent candidates from making lawyers feel that they have to contribute if they are to win cases they take before the state Supreme Court. But Fallone said the intention behind that rule is rarely fulfilled.

“Most people know what the purpose of the call is,” he said, “even though the candidate never asks for money.”

Fallone said the most effective change could come in the form of limits on money spent by outside groups. Many people, he said, assume the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission leaves no room for such limits.

But Fallone said lawmakers could show that imposing stricter limits in judicial races serves a compelling public interest and could use that demonstration as starting point to devise rules that would stand up in court.

“Many people think Citizens United has our hands tied,” he said. “I actually think there is room to regulate independent money more.”

Others question whether a change is needed at all. Brandon Scholz, who was senior campaign adviser to Roggensack and has worked on various congressional campaigns, said the money spent on elections is simply the best means a candidate has to convey a message to voters. He said any perception that the spending influences a justice’s ruling is off the mark.

“I don’t think anyone,” he said, “from the circuit to the appellate to the Supreme Court level is going to have their judicial philosophy based on a $500 contribution at a cocktail party.”

Roggensack said she has never seen a fellow justice vote in a way that she thought was influenced by political donations.

“You don’t get a vote for a contribution,” she said. “You just don’t.”

McCabe said many observers assume the increase in spending on Supreme Court races is a result of Citizens United. But he said the real rise came years earlier, during Clifford’s race against Ziegler.

chartMcCabe said he could only speculate that outside interests decided to pump $3.1 million into that contest because it dawned on them that they could change the political leanings of a seven-member body much more easily than that of a 132-member Legislature.

Jason Culotta, director of tax and transportation policy at Wisconsin Manufacturers and Commerce, said the real impetus behind the increased spending was a series of rulings the Supreme Court handed down in 2005, many of which he and his colleagues believed were harmful to business interests.

“That really was what motivated us to get into action,” he said, “and make sure the public was really aware what the court was up to.”

Whatever the motives, Clifford said, she thinks change is needed, but agreed with those who say term limits will do nothing to prevent money from pouring into judicial races. Doubtful that Citizens United leaves much room for controlling campaign spending, she instead suggested a series of modest changes. Among other things, she called for letting candidates run with the use of public money and moving state Supreme Court elections to the fall so they occur at the same time as contests that tend to attract a large turnout.

But, she conceded, those changes won’t curtail the campaign-spending concerns Clifford said are at the heart of the problems with judicial elections.

“Whether or not it does influence the outcome and whether or not it actually influences a judge’s approach to the bench,” she said, “the bottom line is: It does affect the public’s perception of the court, and, for that reason, something should be done.”

Clifford argues campaign spending concerns are at the heart of the problems with state judicial elections.
Clifford argues campaign spending concerns are at the heart of the problems with state judicial elections.

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