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Prosser: Public money complicated high court race (UPDATE)

By: Dan Shaw, [email protected]//October 25, 2013//

Prosser: Public money complicated high court race (UPDATE)

By: Dan Shaw, [email protected]//October 25, 2013//

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prosser-kloppenburg1As the State Bar and others work on alternatives to Supreme Court elections, a new report pointed to the increasingly high spending on races for Wisconsin’s highest court.

Figures released Thursday by Justice at Stake and the Brennan Center for Justice, nonpartisan groups that work to diminish the influence of special interests on the judicial system, found that $5.1 million was spent in Justice David Prosser’s successful 2011 defense of his seat on the bench.

The contest, in which Prosser defeated then-Assistant Attorney General JoAnne Kloppenburg and two other challengers, was the second most expensive state judiciary race in the country that year, according to the report. And despite use of public financing by Prosser, Kloppenburg and one of the other candidates, it also was one of the costliest Supreme Court races in state history.

Reached Friday, Prosser said if he had to do it all over again, he probably would not accept public financing. When he agreed to take the money – $100,000 in the primary election and $300,000 in the general election – he said he was hoping “to take one issue off the table.”

Ultimately, though, the decision left him nearly defenseless against the independent groups that poured money into the campaign and into attack ads, especially after Gov. Scott Walker announced he would introduce legislation to strip most public workers of the bulk of their collective bargaining rights.

Prosser said was happy that public financing prevented him from spending a lot of time trying to raise money while he was on the campaign trail. Still, he said he is not ready to endorse that system or other proposals — such as one put forward by the Wisconsin State Bar to limit justices to serving single, 16-year terms on the bench — as the best way to diminish the perception that campaign spending is influencing the court.

“I think the plan by the State Bar is really quite ingenious,” he said. “But some of the downside is that it would obviously make for very, very expensive initial campaigns. It would make the first and only campaign absolutely pivotal.”

Though the 2011 election was the second most expensive among any state’s judiciary elections held the same year, it was cheaper than its two predecessors in Wisconsin, noted Mike McCabe, executive director of the Wisconsin Democracy Campaign. In 2007, $5.8 million was spent in an election in which Justice Annette Ziegler won a seat on the bench and nearly $6 million was spent the following year in a contest in which Justice Michael Gableman emerged victorious.

McCabe said the use of public financing would not necessarily have reduced the spending in those races. Outside interests groups, he said, would have remained free to pour in as much money as they wanted.

But public financing would prevent Supreme Court aspirants from feeling pressured to raise huge sums of money to keep up with those outside interests. The more money candidates have to raise on their own, he said, the stronger the public perception will be that they will be beholden to the groups they got it from.

McCabe said public financing is effective at keeping special-interest spending from being directly attached to electoral campaigns, which is why he believes such systems rarely receive support in state legislatures.

“The political establishment hates it,” he said. “And private interests don’t want it go to legislatures and try to get it repealed if it does.”

Wisconsin had offered public financing for state campaigns for 33 years but only established the Democracy Trust Fund, which provided money to state Supreme Court candidates, for the year of Prosser’s race. That fund later was abolished by the Legislature.

According to lawmakers’ original intentions, an excessive amount of election spending by outside groups was to have triggered a provision that would give a candidate’s campaign additional money for a response. But those triggers never were tripped in the 2011 election, McCabe said, because the U.S. Supreme Court had earlier struck down a similar provision in an Arizona law.

“The law,” he said, “was really never given a chance to operate as it was designed to operate.”

Prosser said he had caught wind during the 2011 campaign that Democratic groups planned to spend a lot of money to unseat him. Such groups, he said he was told, wanted to have a new political alignment on the bench – exchanging a justice perceived to be conservative with one thought to be more liberal – when the state redrew legislative districts later that year.

But Prosser said he was caught completely by surprise when Walker moved to take away most of public workers’ collective bargaining rights.

“I had no idea of what was coming in the campaign in terms of anything Governor Walker did,” he said. “What I did know was there was going to be an effort to defeat me.”

“I had it from extremely reliable sources – Democratic sources,” he added. “To say this all involved Scott Walker is just untrue.”

The state Supreme Court is scheduled to take up Walker’s collective-bargaining law Nov. 11.

— Follow Dan on Twitter

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