Before Supreme Court Justice Rebecca Bradley became a judge, she and fellow attorneys urged candidates for the state’s highest court not to sign a so-called clean-campaign pledge pushed by the state bar association.
Bradley and Milwaukee attorneys Don Daugherty, David Simon and Daniel Kelly said in a 2008 opinion column that a pledge put forward by the State Bar of Wisconsin’s Judicial Campaign Integrity Committee shouldn’t be signed by candidates because it infringes on free speech.
“The Bar should not try to regulate speech by judicial candidates in a way that would be plainly unconstitutional if done by the government,” the four wrote. “The far better course is for candidates and their supporters to provide information they believe appropriate — good, bad, even ugly — and let voters decide.”
The committee was created in 2007 by the bar association’s then-president, Tom Basting Sr., as a self-appointed watchdog group that tried to referee that year’s race for Wisconsin Supreme Court. The committee was disbanded in 2009, according to the bar association.
Basting and his group issued seven statements reacting to advertising in the race that it deemed false or to have impugned the reputation of either candidate or the court.
His group was criticized, mostly by conservatives, for being biased toward incumbent Justice Louis Butler, who signed the committee’s clean-campaign pledge, and against then-Burnett County Circuit Judge Michael Gableman, who did not.
The committee issued a strong statement decrying one of Gableman’s ads, and it found fault with commercials run by both liberal and conservative third-party groups.
Gableman won the race but received an ethics charge from the Wisconsin Judicial Commission, which said one of his ads attacking Butler violated the state Code of Judicial Conduct by lying about Butler’s record.
The 2008 column, published before that ad was released, was co-authored by Bradley and said no matter how well-intentioned, “the pledge will effectively prevent Wisconsin voters from obtaining the fullest information possible for deciding who is best-suited to serve on our highest court.”
Bradley in the column said the bar association shouldn’t determine “when speech crosses the line.”
“Although it pays lip service to the First Amendment, the pledge will force candidates to choose between exercising their free speech rights as they see fit and facing a possible scolding by the committee,” they wrote.
The column noted the pledge should not preserve “the judiciary’s image (at) the expense of free speech.”
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“That raises the question why the committee should be deciding for voters when words are poorly chosen,” the four wrote. “The committee’s task of determining conclusively and objectively whether statements made during a campaign are false or unfair is quixotic, at best.”
Bradley said last week in an interview that she and the fellow attorneys wrote the column to address the creation of the committee, which they believed to be unique.
“It was rather unprecedented in Wisconsin and somewhat alarming in its attempt to stifle free speech and First Amendment rights,” Bradley said. She said the group worried the pledge would end up restricting the amount of information available to voters.
The column refers to a portion of the pledge that asks candidates to “publicly disavow advertisements that impugn the integrity” of the state’s judicial system, another candidate or “erode public trust and confidence in the independence and impartiality of the judiciary by verbally or visually attempting to lead voters to believe that a candidate will decide issues or cases in a predetermined manner.”
Bradley said she relies on the state’s judicial code of ethics, which includes rules for judicial candidates’ campaign activity. The pledge relies on much of the code’s language.
Liberal advocacy group One Wisconsin Now executive director Scot Ross said the column brings Bradley’s integrity into question, and characterized her column as endorsing lying in campaigns.
Milwaukee County Circuit Judge Joe Donald, who also is running for the Supreme Court seat Bradley is seeking, said through a spokesman he would have no problem signing the pledge.
“This pledge is no different than the pledge my mother held me to when I was a child growing up,” he said. “Wisconsin voters deserve to be treated with respect, and I intend to conduct my campaign with the same integrity that I have demonstrated during my two decades as a judge.”
Melissa Mulliken, spokeswoman for state court of appeals judge and Supreme Court candidate JoAnne Kloppenburg, said Kloppenburg would sign the pledge if it made clear that it “was meant to apply to advertisements that are untrue or inaccurate.”
She said Kloppenburg is “scrupulous” in adhering to the state’s code of judicial ethics.
“In addition, our campaign already adheres to the fundamental precepts laid out in the pledge,” Mulliken said.