The winners of the past six state Supreme Court races have at least one thing in common: Each received the most support of independent groups, including unregulated spending on thinly veiled campaign commercials known as “issue ads.”
In particular, conservative groups have spent heavily — two dollars for every one spent by liberal groups — in recent years to help produce a right-of-center majority on Wisconsin’s highest court.
Overall, outside interest groups have spent an estimated $13.2 million on issue ads alone since 2007 on behalf of Supreme Court candidates, according to data compiled by the Wisconsin Democracy Campaign.
Such “dark money” ads are contentious because their funders aren’t required to be identified. And while they purport to be about policy issues rather than a particular candidate, such ads rarely surface outside of an election and are intended to influence the election.
Interest groups and observers say the millions of dollars typically spent on Supreme Court candidates likely will continue this spring as Justice Rebecca Bradley, appointed to the state’s highest court by Gov. Scott Walker on Oct. 9, seeks to keep her seat. She is being challenged by Milwaukee County Circuit Court Judge Joe Donald and Court of Appeals Judge JoAnne Kloppenburg.
The three will face each other in the Feb. 16 primary, with the two prevailing candidates squaring off in the general election April 5.
The largest and most influential player in court races in recent years is the state’s business lobby, Wisconsin Manufacturers & Commerce. It has spent nearly $6 million on issue advertising for conservative-leaning candidates in the past six Supreme Court races and will likely spend high again.
“We fully expect to be involved in the same type of issue advocacy that we’ve done on issues surrounding the Supreme Court and the judiciary,” said WMC lobbyist Scott Manley.
He declined to provide details or expected spending amounts, though he added “we do expect to be involved at the same level (as) in the past.”
Manley wouldn’t say which candidate WMC was leaning toward, but in a September column on the group’s website promoting Bradley, WMC spokesman Jim Pugh called her a “judicial traditionalist” and described Kloppenburg as “a Madison liberal judge” and Donald as “a Milwaukee County liberal judge.”
The Greater Wisconsin Committee, which supports liberals, has spent around $4 million on candidates who won two of the six races. Officials with the group did not return calls seeking comment.
In 2011, the group spent $1.6 million on behalf of Kloppenburg, according to Wisconsin Democracy Campaign estimates, on ads against her opponent Justice David Prosser — who won that race. Prosser was the beneficiary of $1.1 million spent by WMC and $520,000 spent by the Wisconsin Club for Growth.
Citizens for a Strong America, an arm of Club for Growth, also spent $985,000 on advertising and other efforts to support Prosser or attack Kloppenburg.
The third-highest spending group in the past six Supreme Court races was the Wisconsin Club for Growth, dispensing $1.8 million since 2007.
Overall, conservative candidates receive more support from more groups than liberals. Since 2007, eight conservative-backing interest groups have spent $8.9 million on Supreme Court candidates, while two liberal backing groups have spent $4.3 million.
Influence on candidates
While outside spending is part of the formula for a successful candidate, those in this year’s race were reluctant to endorse it or address whether they could be successful without it.
Donald said his decision to run was pushed by his belief that “the citizens of this state truly want an independent, nonpartisan justice” but said he realizes the spending is a reality.
“That’s one of the things that concerns me — if candidates are truly independent,” he said. “(Voters) want you to be beholden to the law and the constitution and not to politics, not to politicians, not to special interest groups.
“I believe my candidacy will send a message. Its not like I was this hand-picked or created candidate. I’ve been a judge for 20 years and I decided to step up and say, ‘Look, I’m going to run for our state Supreme Court.’ ”
Bradley declined to be interviewed for this story. A campaign spokeswoman said it would be improper to comment on any spending outside groups may do “in order to take part in the spring election” because “the campaign is not coordinating with any outside groups.”
“Justice Bradley intends to continue running a positive campaign focused on her experience, judicial philosophy and service to the people of Wisconsin, and she encourages all other candidates and outside groups to do the same,” Bradley spokeswoman Madison Wiberg said.
Kloppenburg said “there’s no question that large amounts of money from unregulated special interests that don’t have to disclose their donors threatens to undermine people’s confidence in the court.”
She said she’s running for the court a second time because Wisconsin residents “want the court to act as an independent check and balance on the other branches of government.”
“We don’t control that — we can’t control that,” Kloppenburg said about the prospect of ads purchased on her behalf by special interest groups. “The special interests don’t and can’t define me.”
Matt Rothschild, executive director of the Wisconsin Democracy Campaign, said spending will ramp up after the primary.
“I imagine the huge spenders like WMC will be holding their fire (until then),” he said.
Rothschild said “you can bet” Bradley will receive backing from WMC and the Wisconsin Club for Growth but wasn’t sure which liberal-leaning candidate would draw the most support from groups looking to spend to promote liberal interests.
He said spending on Bradley’s behalf will be substantial from groups that have seen cases go before the court.
“They appreciate the return on their investment, when they are able to essentially purchase a seat on the state Supreme Court,” he said. “(The court has) ruled almost universally in favor of WMC and got the John Doe off their backs.”
Last year, the court ruled 4-2 to end a second secret criminal probe, known as a John Doe, of coordination involving Walker and his gubernatorial campaign with independent groups. Walker was never charged.
Wisconsin Club for Growth, Citizens for a Strong America and WMC spent millions to support the candidacies of Justices David Prosser, Pat Roggensack, Annette Ziegler and Michael Gableman over the past seven years.
WMC also helped write the controversial recusal rules under which justices and other Wisconsin judges decide whether to sit on a case. Those rules, adopted on a 4-3 vote, state that judges cannot be forced off a case based solely on their acceptance of legal campaign contributions or independent efforts done on their behalf.
The court in July also ruled there is a First Amendment right to such coordination that prompted the John Doe investigation. The court’s ruling cleared the way for candidates to coordinate with issue advocacy groups if they choose.
Rebecca Bradley has had the backing of such independent issue advocacy groups. Wisconsin Club for Growth, a group that supported Walker and was investigated as part of the John Doe probe, spent $167,000 in Bradley’s race to retain her seat on the Milwaukee County Circuit Court in 2013.
But Rick Esenberg, president and general counsel at the conservative legal group Wisconsin Institute for Law and Liberty, said it’s not just a conservative issue — groups on both sides spend in order to promote ideologies, and the major players have become the mechanism to do so.
“The Greater Wisconsin Committee and WMC have become the vehicles to which a lot of this spending is done,” Esenberg said. “People are giving them money in order to spend money on Supreme Court races.”
Scott Greytak, senior policy counsel for the judicial election-tracking group Justice At Stake, said Wisconsin is “the textbook example of a court that has fallen prey to special interest influence and special interest spending.”
He said Wisconsin mirrors national trends in judicial election spending in that business groups, like WMC, battle against groups representing trial attorneys or labor unions.
Greytak said the state’s recusal rules have contributed to a loss of trust in the integrity of the court system.
“All four justices had benefitted from spending from outside groups and sided with the majority in the decision to drop the John Doe case — talk about a hit on public confidence,” he said.
Esenberg said Supreme Court races became salient about 10 years ago, after the court made key decisions that set policy.
“Whether you like what they did or disliked what they did, they were significant decisions that appear to have represented a departure from past practice,” Esenberg said. “That had a significant policy impact, and when courts do that, people become very interested.”
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