Published in The Nation.
Wisconsin’s 2011 Supreme Court election has been widely criticized. The contest between incumbent Justice David Prosser and challenger JoAnne Kloppenburg was dominated by secretive special interests that poured millions of undisclosed dollars into the election—a growing problem everywhere since the U.S. Supreme Court’s disastrous 2010 decision in Citizens United. The record-breaking levels of special interest money fueled a barrage of mud-slinging attack ads that featured misleading claims—if not outright lies.
There is plenty here to lament. But there are also some silver linings.
One is the unexpectedly high voter turnout. As a result of the charged political debate that energized Madison in early 2011, voter interest in this race skyrocketed. If voters are to have a say in choosing judges, such choices are certainly best made by an engaged citizenry, instead of the tiny number of voters who often decide low-turnout judicial races.
Most importantly, this election illustrates the importance of Wisconsin’s new judicial public financing system.
In recent years, state judicial elections (in Wisconsin and elsewhere) have become increasingly expensive and increasingly partisan. Judicial candidates have been forced to turn to special-interest money—from trial lawyers, businesses, unions and other litigants—to gain or keep their jobs.
These special-interest contributions pose a tremendous threat to the public’s faith in fair and impartial courts. More than 80 percent of Americans believe judges should not hear cases involving major campaign supporters. And in 2008, 90 percent of Wisconsin voters said they believed judges’ decisions were influenced by campaign contributions.
Faced with this threat, Wisconsin took action. In 2009 the state enacted the Impartial Justice Act, which gave public campaign financing to viable judicial candidates. Public financing allowed both Prosser and Kloppenburg to get their message out to voters without relying on direct contributions from the lawyers and litigants who appear before them in court.
Naysayers may contend that Wisconsin’s public financing system spurred this year’s record-breaking outside spending. They are wrong. True, Justice Prosser and JoAnne Kloppenburg (who each received $400,000 in public financing for the primary and general elections) were far outspent by special interest groups (which spent at least $3.6 million in the 2011 race). But a comparison with the heavily-contested 2008 race shows that the new public financing system is not responsible for this —in fact, Wisconsin’s privately-financed 2008 high court election was characterized by precisely the same dynamic.
In 2008, outside groups spent a then-record $3.38 million on TV ads—only slightly less than was spent this year. Meanwhile, the victorious candidate in 2008, Justice Michael Gableman, had about the same amount of money as this year’s publicly-financed candidates. Justice Gableman raised $443,839 in private contributions to run for a seat on the high court—including $86,905 from the general business sector and $79,845 from the finance, insurance and real estate industries.
In other words, judicial candidates are just as viable with public or private financing. But there’s a crucial difference: under the Impartial Justice Act, publicly-funded candidates are given sufficient funds to run competitive, positive campaigns. This means that David Prosser and JoAnne Kloppenburg didn’t have to go hat-in-hand asking for money from the lawyers and litigants who traditionally bankroll judicial campaigns. To be sure, this year’s race featured the unseemly spectacle of groups on the left and right soliciting contributions for the interest groups that served as the election’s attack dogs. But the candidates themselves were insulated from this dash for cash.
Public financing plays a particularly valuable role in judicial elections, where it not only helps to prevent quid pro quo corruption, but also protects elected judges against the appearance of bias in the courtroom. As Wisconsin federal judge William M. Conley recently observed (in a ruling upholding the constitutionality of the Impartial Justice Act), “judges—even when popularly elected—are not representative officials, but rather are expected to be, and to appear to be, impartial and independent in applying the rule of law.” Judge Conley is right. We need elected judges to treat all parties equally, regardless of whether they’ve offered campaign support.
Public financing is an important political reform in many contexts. Nowhere is it more needed than in our nation’s judicial elections.