Editor's note (March 23, 3:30 p.m.): Capital Times reporter Steven Elbow has asked for the return of a $5 donation he gave to a door-to-door solicitor in December who was working in support of JoAnne Kloppenburg's Supreme Court campaign. The return of the donation, which editors learned about after the publication of this article, was necessary to avoid the appearance of bias in Elbow's coverage of the race.
Kent Hall is mad as hell at Gov. Scott Walker, but since Walker isn’t up for re-election he wants to vent his anger on Supreme Court Justice David Prosser, who is. So he started his own political action committee to back Prosser’s opponent, JoAnne Kloppenburg, in the April 5 election.
“We’re moving from chanting, clapping our hands, shouting and marching to getting even,” says Hall, a retired UW-Stevens Point biology professor, who with his wife, Sue, and several friends has printed and distributed hundreds of campaign fliers and made well over 100 yard signs to distribute throughout Portage County, 100 miles north of Madison.
“If we can tie Prosser to Scott Walker, then a vote for Kloppenburg will be a vote against Walker,” he says.
It’s a theme that’s gaining traction as the Supreme Court race approaches. And Kloppenburg supporters see it as their first chance to give voters a statewide referendum on the Walker administration. Many of those supporters, like Hall, are acting on their own to take up Kloppenburg’s banner as her campaign reaches the legal limit of what it can spend.
Ordinarily, a few independent supporters wouldn’t go very far in helping a first-time candidate take down a well-known incumbent. But to say that the anti-Walker forces are mobilized would be a gross understatement. Walker’s Feb. 11 unveiling of his budget repair bill, which strips public workers of nearly all of their collective bargaining rights, put the State Capitol under a weeks-long state of siege by hundreds of thousands of state workers, teachers, union members and others who felt that Walker had gone too far. And anti-Walker rallies in dozens of other locales have drawn thousands.
That anger is heading Prosser’s way like a hail of bullets, and he doesn’t think it’s fair.
“I view this a little bit like a drive-by shooting,” Prosser says. “I’m not responsible for any of this.”
Regardless, Prosser’s past as a Republican legislative leader and his place among the conservative majority on the court, not to mention a series of missteps by his campaign that all but proclaimed a willingness to abet the Walker administration, have made him a target for the anti-Walker contingent.
Like Hall, many of those who mobilized against Walker’s budget repair bill are jumping into the Supreme Court race.
Issues stemming from the bill, some of which are already in circuit court, will certainly make their way to the high court, as will other Walker initiatives, including significant changes to the Wisconsin Retirement System, which Walker has signaled are in the offing next year.
Both sides agree that it’s a momentous election. Supreme Court races are nonpartisan, but some very partisan interests have spent millions in the past few years to swing the balance of power between conservative and liberal-leaning justices on the seven-member court. In 2008, in the most expensive and arguably the most bitter Supreme Court race in state history, obscure Burnett County Circuit Judge Michael Gableman narrowly defeated sitting Justice Louis Butler to tip the balance of power toward the conservatives. Knocking off Prosser, a 12-year-incumbent, would give liberals at least some parity. (While some put the conservatives at a 4-3 advantage, Justice Patrick Crooks, often placed in the liberal camp, is more of a swing vote.)
“The events of the last few weeks have put into sharp relief how important the Supreme Court is as a check on overreach in the other branches of government,” said Kloppenburg during an interview with The Capital Times editorial board.
Prosser, who says he put his partisanship aside when he was appointed to the court by Gov. Tommy Thompson in 1998, maintains that he is among the most impartial justices on the court.
“I’m not an obstacle for the Walker administration, but I am not a rubber stamp for the Walker administration,” he says. “I will look at each case on the facts and the law.”
• • • •
But as the election approaches, many who oppose Walker are portraying it as the last line of defense against a Republican governor and GOP Legislature that they say are eroding worker and consumer rights and rapidly reshaping Wisconsin into a corporatist state. And they’re busy getting the word out.
“I see it as a full frontal attack on citizens’ rights,” says Katherine Polich, a Madison attorney. “And your only stopping point is the court.”
Polich has been actively campaigning on behalf of Kloppenburg by volunteering for phone banks, attending rallies, sending out emails documenting Prosser’s past speaking engagements with tea party groups, and urging those working on recalls of Republican state senators to hand out Kloppenburg literature as they go door-to-door in various parts of the state.
Others are busily getting organized on a scale reminiscent of the 2008 campaign that swept Barack Obama into the White House.
Public financing rules that limit direct candidate spending to $300,000, which both Prosser and Kloppenburg have agreed to, have made it impossible to sustain their campaigns at a high level. Like Hall, other Kloppenburg supporters are filling the void by forming political action committees (PACs), which allow them to raise and spend money on her behalf. By law, the groups cannot coordinate with Kloppenburg’s campaign. On Tuesday, 11 pro-Kloppenburg PACs were listed on the state Government Accountability Board website, all of them registered in the past two weeks.
While people tend to think of PACs as ways for big business and powerful unions to funnel money into campaigns, it turns out that anyone can create one by simply filling out a form.
“The difference is these are really grass-roots people who are getting together and throwing in $400 or $500 to get this to happen just because they’re so energized by the moment,” says Eric Sundquist, team leader for the Madtown O’s, a progressive canvassing group that is working with local PACs. Some PACs use the money to print campaign literature, which is then distributed by the Madtown O’s and other volunteer groups.
Madtown O’s started seeking out the political action committees after calling the Kloppenburg campaign for fliers and finding out there were none left, and no money for more.
“The Kloppenburg campaign only printed a little bit of it,” says Sundquist, who is also a member of Madison’s Plan Commission. “They don’t have the money to do it.”
Besides Madtown O’s, Sundquist says there are other teams, which like his were once affiliated with Organizing for America, an arm of the Democratic Party that organized field teams for the Obama campaign. There are groups in the city’s north, southwest and isthmus areas, as well as the Middleton Action Team. Together, Sundquist says, they can cover nearly 80 percent of the Madison area with door-to-door canvassers.
“Having that structure here really let people be able to connect and form these PACs quickly when it was clear that there was not any ground game for the Kloppenburg campaign,” he says.
Bill Delaney of Middleton even quit his job as an information technology specialist for the state to devote himself full time to activism.
“It got to the point where I don’t want to work for this governor,” he says.
His first order of business is to give Prosser the boot. He’s registered his own PAC, Wisconsin Commons, and has raised about $2,000, which he has used to print campaign literature, some of which he hands off to the Middleton Action Team, another former Organizing for America group that has continued to take up progressive causes.
Delaney is also working to take the fight statewide. He’s studied the primary results, identified counties where Kloppenburg’s showing was weak and plans to distribute pro-Kloppenburg literature in the areas where he thinks it can make a difference. And while Kloppenburg has vowed to run a positive campaign, Delaney wants to hit Prosser hard.
“We’ve got to do negative campaigning against Prosser,” he says. “It would be crazy not to.”
Laura Chern, a hydrogeologist with the state Department of Natural Resources, registered her PAC with two friends who are also public workers. They only plan to spend about $200, which they are raising through friends and family.
“We’re pretty small potatoes,” says Chern.
They’ve used the money to make yard signs and print literature, which they hand out at rallies.
“To me the best hope for state employees, with all these lawsuits that are coming, is to at least have an impartial justice on the court,” she says.
Chern says she got the idea for the PAC from Melissa Mulliken, Kloppenburg’s campaign manager, who hosted a volunteer coffee to explain that campaign financing rules prohibit the campaign from taking donations, then mentioned that if people want to spend money on the campaign, they can start their own PAC.
Experienced campaign workers also are getting into the act. Amanda Hall, who has worked as a campaign organizer in five election cycles as an intern, including a stint with U.S. Rep. Tammy Baldwin’s campaign, has formed ProgressWorks.org, which aims to provide field support for other volunteer groups. She in turn is working unofficially with the campus group Young Progressives, which has been mobilizing student activists at the Capitol protests.
“I feel blessed to work in a city where there’s so much organizing experience,” she says.
And while it’s easy to dismiss Dane County as a progressive bubble (Prosser received 31 percent of the vote here in the February primary, compared to 55 percent statewide), in addition to Hall’s PAC in Stevens Point, pro-Kloppenburg political action committees also have emerged in Hudson, Eau Claire, Colfax and Marshfield.
• • • •
Until recently, Kloppenburg was a little-known assistant attorney general with the Department of Justice who, in any other year, would have little chance of unseating an entrenched incumbent. But now she is riding on a wave of anger that gives her a good shot.
“There’s a great sense that we need to return Wisconsin to some level of sanity,” says Mulliken. “I think it will be a bigger turnout than we’ve seen in other April elections, and our job as a campaign is to capitalize on that.”
University of Wisconsin-Madison political science professor Ken Mayer says the heated political environment has definitely worked in Kloppenburg’s favor.
But he cautions that the type of grass-roots campaigning that is boosting her might be happening elsewhere on behalf of Prosser.
“Just because of the fact that we can’t see it here doesn’t mean it’s not happening,” he says.
But even Prosser concedes that “it could be a race.”
And given the fact that he has already run a television ad, his funds are likely nearly depleted. So Prosser’s campaign will be dependent on outside help from entities like Wisconsin Manufacturers & Commerce and Wisconsin Club for Growth, which spent lavishly in 2007 and 2008 to get conservative candidates elected.
“To unseat someone who has been around, that’s going to take a lot of money,” he says. “And it can’t come from JoAnne Kloppenburg’s campaign, so it’s got to come from somebody else. And there are people who like my service on the court, and they have to know that if a lot of money is spent, they’ve got to be prepared to spend money to counter it.”
• • • •
In elections in 2007 and 2008, conservative groups like Wisconsin Manufacturers & Commerce and Wisconsin Club for Growth spent millions to tip the balance of the court. In this year’s primary, according to the Brennan Center for Justice, Club for Growth spent $321,000 on an ad supporting Prosser.
Few think that these groups, and the conservative Koch-funded Americans for Prosperity, will sit this one out.
But the first volley in the big-money ad war came last week from the liberal Greater Wisconsin Committee, which ran a spot calling Prosser a “rubber stamp” for the Walker administration. It set the tone for what promises to be a blistering final two weeks of the campaign.
This week, WMC, which spent $4 million in 2007 and 2008 to win a conservative majority on the court, announced that it is in the game. A letter to members by WMC President Jim Haney and posted on its website labeled Greater Wisconsin Committee a front for unions and urged members to pledge their support.
“WMC Issues Mobilization Council Inc. is launching a television ad campaign to counter the distortions from government unions and their allies about Justice Prosser,” says the letter.
Haney goes on to say: “Kloppenburg, who has never been a judge, has strong ties to Wisconsin’s extreme left, including endorsement by the former national co-chairman of the radical Green Party, Ben Manski.”
The release slams Kloppenburg for her four unsuccessful applications for judgeships — three for appeals court and one for U.S. district judge.
“Despite her ties to the left, Obama and Doyle couldn’t bring themselves to appoint her to a judgeship,” Haney writes.
The Greater Wisconsin Committee ad exploits early missteps by the Prosser campaign. His campaign manager, Brian Nemoir, issued a press release on Dec. 8 stating that the re-election of Prosser was about “protecting the conservative judicial majority and acting as a common sense complement to both the new administration and Legislature.”
Nemoir, a former political director with the state Republican Party, is a political consultant in Delafield whose introductory press release for the Prosser campaign listed no previous experience running a statewide race. On Dec. 9 the Milwaukee Journal Sentinel quoted an email from Nemoir that says of Prosser: “Obviously, his personal ideology more closely mirrors that of the incoming administration and Legislature, but his impartial approach to applying the law won’t deviate.”
The Greater Wisconsin Committee ad boiled down the quotes to say Prosser has “promised to act as a complement to Walker because his views closely mirror Walker’s.”
Prosser acknowledges that the press release was a bad political move.
“The truth of the matter is I didn’t authorize that news release, I didn’t see that news release, and I have repeatedly disavowed that news release,” Prosser says.
Adding to Prosser’s woes, on Sunday the Milwaukee Journal Sentinel ran a story that further brought into question his ability to work with others on the court. The paper reported that around the time the court was debating ethics violation allegations against Gableman, Prosser called Chief Justice Shirley Abrahamson a “bitch” and threatened to “destroy” her.
Weeks ago, during an interview with The Capital Times editorial board, Kloppenburg brought up the issue of Prosser’s temperament.
“You can tell when he’s talking that he has some personal strong feelings against some of the other justices that impede his ability to help the court reach decisions that are fair and impartial,” she said.
• • • •
While Prosser and Kloppenburg differ on their approach to judicial matters, their personal stories, too, provide a stark contrast. Prosser’s story is all about politics, but Kloppenburg, 57, started her career in public service in Botswana as a Peace Corps volunteer.
“My husband and I got married the day before we left,” she says.
After graduating from a large Connecticut high school, Kloppenburg landed a scholarship at Yale, enrolling in only the second class of women accepted into the elite Ivy League school. She graduated with honors, majoring in Russian studies.
“I wanted to be an ambassador,” she says.
With that in mind, she attended the Woodrow Wilson School of Public and International Affairs at Princeton University, but found the world of diplomacy in the 1970s dominated by nuclear deterrence, “and I was interested in a more people-oriented approach.” So she switched her focus to Third World development, earned her master’s degree in 1976, and joined the Peace Corps.
In Botswana Kloppenburg became a rural development planner. After working in various districts for two years, the government of Botswana asked her to stay on for another year and direct rural development for the entire country.
She and her husband, UW professor Jack Kloppenburg, next spent six weeks aboard Greyhound buses trying to decide where they wanted to move. They chose upstate New York, where Jack got his Ph.D. at Cornell University, and JoAnne started Women Infants and Children programs, a federally funded effort to support low-income families, in two counties. When the programs were up and running, she took a job as an associate dean at Wells College in Aurora, N.Y.
She decided to attend law school, and with a 3-year-old and a newborn — they eventually had a third child — she enrolled at UW. While attending law school, she interned for Abrahamson and clerked for U.S. District Court Judge Barbara Crabb.
In 1989 she joined the state Department of Justice, eventually serving under two Democratic and two Republican attorneys general. She started with the civil litigation unit where she handled cases concerning civil and constitutional rights and prisoner litigation. In 1991 she moved to the environmental protection unit, where she enforces the state’s environmental laws.
She’s taught at the UW Law School since 1990 and coordinates the school’s “extern” program, which gives students experience in public advocacy and litigation.
• • • •
While Kloppenburg was in graduate school, Prosser was in the thick of the biggest political story of the decade.
Born in Chicago and raised in Appleton, Prosser developed an early interest in politics. In high school he was active in student government and a member of the Young Republicans.
After graduating from DePauw University, Prosser went on to get his law degree from UW, finding time to write humor columns for the Wisconsin State Journal, though not for pay, and to work as a stringer for the Washington Post on the side. After getting his law degree, he taught legal writing at Indiana University-Indianapolis Law School.
Then in 1969 he went on to Washington, D.C., where he had several brushes with history. He landed a job with the U.S. Department of Justice as an attorney and adviser with the department’s Office of Criminal Justice at the height of the Vietnam War protests.
“Being an eager new employee, I went to work at the department on a Saturday morning and I couldn’t get out of the building the rest of the day,” he says. “There was a huge protest and they were banging on the doors.”
He became a speech writer for Deputy Attorney General Richard Kleindienst, who later, as attorney general, resigned during the Watergate scandal. Prosser also had a hand in writing speeches for other high-ranking Republicans, including Gerald Ford, then the House minority leader, and President Richard Nixon.
Prosser later became administrative assistant to U.S. Rep. Harold Froehlich, R-Wis., a member of the House Judiciary Committee during the Watergate impeachment inquiry, and he found himself enmeshed in the scandal’s fallout. He helped draft Froehlich’s statement announcing that the representative would be voting for two of three articles of impeachment against Nixon. “There’s nothing that’s ever been as stressful as that experience,” he says.
During his time in Washington, Prosser met with many other personalities connected with the scandal, including on one occasion going to a movie with a group that included Gordon Liddy, who directed the burglaries of the Democratic National Committee headquarters in the Watergate building in 1972.
Prosser came back to Wisconsin, and in 1977 began a two-year stint as Outagamie County district attorney before getting elected to the state Legislature as a Republican in 1978, where he served alongside future Gov. Tommy Thompson and future U.S. District Court Judge John Shabaz. Prosser spent six years as Assembly minority leader and two years as Assembly speaker. In 1996, while Assembly speaker, he mounted a bid for the 8th U.S. Congressional seat once held by Froehlich, but lost to former television broadcast journalist Jay Johnson.
In 1998, Thompson appointed him to serve out the last two years of Janine Geske’s term on the Supreme Court, and in 2001 he ran unopposed for a full term.
• • • •
Prosser, 68 and single, doesn’t try to soft-pedal his former partisanship, but he says it’s past history. But Kloppenburg says Prosser’s partisanship is alive and well. It was on display, she says, when the court deadlocked 3-3 to clear Gableman of judicial ethics violations stemming from a misleading attack ad that falsely suggested that his opponent Butler, as a public defender, won the release of a sex offender, allowing him to offend again.
The vote was along ideological lines, and with the tie, the matter was dismissed.
Unlike Butler, whose past as a public defender was exploited by Gableman and conservative groups as evidence that he was soft on crime, Kloppenburg has spent most of her career as a prosecutor. “They’re going to have to lie to get at me,” she says, “because there’s not much negative they can say.”
And the fact that Prosser has repeatedly been placed in a defensive position has given Kloppenburg the opportunity to take the offensive. While she’s vowed a positive campaign, Kloppenburg has consistently pointed to Prosser’s partisanship, coming back again and again to his early press release, which despite his best efforts, continues to dog his campaign.
“All of those statements are disturbing to people who want the court to be separate and independent from the other branches of government,” says Kloppenburg. “I think it’s raised people’s awareness of the role of the court and how important it is to have justices who don’t bring partisan politics onto the court with them.”
Prosser bristles at the charges of partisanship, while lobbing similar accusations at Kloppenburg and taking her to task for supporting Green Party candidate Manski over Democrat Brett Hulsey in last fall’s election for the 77th Assembly District.
“My largely unknown opponent hides her extreme ideological views behind a Mary Poppins persona,” he wrote last week in a column in The Capital Times. “A candidate who supports Green Party candidates and principles should be willing to admit that publicly.”
Truth be told, the supposedly nonpartisan election is essentially a Democrat vs. Republican affair. And the candidate who wins will likely bring their political perspectives to the court. Political beliefs, after all, are an extension of other beliefs and philosophies we hold dear.
And Republicans certainly would view a Kloppenburg victory as a setback. So in the hyper-partisan political atmosphere that has gripped the state, a vote for Kloppenburg really can be seen as a vote against Walker. And that could be Kloppenburg’s ticket to the Supreme Court.
Mayer, the UW professor, says recent events at the Capitol have galvanized rage at Walker into a force to be reckoned with. And Prosser could be the fall guy.
“Normally this would be a low-turnout election,” says. “And in a low-turnout election, if you have a highly mobilized minority, it has more of a chance to influence the results. Normally this wouldn’t necessarily be a close race, but I think it’s become close to a toss-up.”