Outside influences enter state Supreme Court race (69751)

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As outside interest groups have begun launching their own campaigns in support or opposition of the two state Supreme Court candidates, the question again is how big of an impact will they have on the election?

Last year, third-party groups invested about $3 million in the race between Madison attorney Linda M. Clifford and current Justice Annette Kingsland Ziegler, according to the Wisconsin Democracy Campaign (WDC).

Two national political pundits and a Marquette Law professor suggest that the trend could continue for incumbent Justice Louis B. Butler Jr. and challenger Judge Michael J. Gableman. Similar to last year, the candidates have distinctly different legal backgrounds making them attractive targets for interest groups.

‘Same Fight’

James Bopp Jr., general counsel for the James Madison Center for Free Speech in Indiana, noted that some consider Butler to have liberal tendencies on the bench, while Gableman has admitted to being a judicial conservative.

“It’s the same fight as last year,” said Bopp.

To this point, a handful of outside groups have produced radio, television and Web-based ads. Wisconsin Manufacturers and Commerce is promoting Gableman’s strong backing from law enforcement.

The Wisconsin Club for Growth, which spent $400,000 on ads supporting Ziegler, has already spent about $100,000 on a television spot emphasizing Gableman’s experience as a former prosecutor, according to the WDC.

The Greater Wisconsin Committee has spent roughly $187,000 on an ad that questions the methodology involved in Gableman’s appointment to the circuit court. The WDC estimated $400,000 was spent on ads for Clifford last year.

Who Speaks Loudest?

Marquette University Law Professor Richard Esenberg said there is no doubt that third-party voices often drown out the candidates.

“Because of financial restrictions, it’s tough to give substantially to candidates,” said Esenberg. “So it falls on third parties to coordinate their own campaigns.”

It is becoming more difficult for candidates to divorce themselves from outside influences, said James Sample, general counsel for the Brennan Center for Justice in New York.

“We all suffer, including the interest groups, when any judicial decision reinforces suspicions that the biggest spender and not the best case wins,” said Sample.

He said whichever candidate wins on April 1 should step away from cases which may be significantly linked to outside interest groups and deliver the “reality and appearance of impartial adjudication.”

Lack of Control

At the same time, Bopp said candidates do not have the right to completely silence those outside groups.

“I think it’s perfectly understandable and legitimate given the philosophical differences of each candidate,” said Bopp, who added that third-party ads are designed to distract voters from the real issues in a campaign.

Getting voters to look beyond the easily accessible messages offered at the click of a button is a challenge for the candidates, especially when their pockets are not as deep as some third-parties.

“Look at what these guys have on hand,” said Esenberg. “They don’t have the money to run any type of statewide advertising, so what we’ll mainly see and hear is from outside groups.”

Based on pre-primary reports filed on Feb. 11 with the Wisconsin Government Accountability Board, Butler has about $250,000 in cash on-hand, while Gableman reported approximately $85,000.

Tough Choice

Sample said candidates are often put in a difficult position of challenging the outside advertisements, which can be costly, or simply do nothing.

“Either they allow special interest groups to define the issues with massive television campaigns or they have to go dialing for dollars to respond and define their own campaign,” said Sample.

Public financing of judicial elections is one solution suggested by Sample, but the state Legislature has yet to adopt a plan. Until they do, judicial candidates will likely remain bull’s-eyes for third-party groups.

“I know that the members of the Wisconsin state Supreme Court, the governor and the senate have all endorsed the concept of public judicial financing,” said Sample. “A sound plan would give candidates the opportunity to respond to attacks in their own words, without forcing them to raise substantial sums of money from groups and members of their constituency who come before the court.”

Esenberg said public financing would not solve the problem completely, unless there was a provision to silence third-party groups.

“I don’t always like what they say, but they have a right to be heard during an election,” said Esenberg. “Generally speaking, I think the best remedy for bad speech is more speech.”