Brennan Center to Examine Spending in Wisconsin Supreme Court Election

In a February 20 primary and an April 3 general election, voters will go to the polls to select the next justice on Wisconsin’s Supreme Court. Across the country, state supreme court elections have grown high-cost and politicized, threatening courts’ integrity. The Brennan Center for Justice at NYU School of Law will track, analyze, and publish data on television and radio ad spending in the election using FCC filings and estimates provided by Kantar Media/CMAG. For the first time, the Brennan Center will also track digital advertising, the new frontier in election spending.

Key trends to watch include:

• Dark money and outside groups: In the 2015–16 cycle, Wisconsin Supreme Court elections saw $5.9 million in spending, including $2.5 million from outside groups. Nearly all – 91 percent – of that outside spending was from dark money groups that conceal their donors from the public. This is a national trend, detailed in the Brennan Center report Who Pays for Judicial Races?, which found a record $27.8 million in spending by outside groups in state supreme court races in 2015–16, 82 percent of which was not fully transparent. 
   
• Calls for stronger recusal rules: Last year, 54 former Wisconsin judges asked the state Supreme Court to strengthen recusal rules for judges benefiting from campaign contributions or outside spending. That followed a lengthy investigation into coordination between outside groups and Wisconsin political candidates, and refusal by two Wisconsin Supreme Court justices to recuse themselves from a related case despite receiving contributions from the very outside groups under investigation. The Court rejected the retired-judges’ petition for rules changes, but advocates are still calling for reform.
   
• National politics in a state court race: As the media and public look to local elections as a harbinger of the 2018 midterms, Wisconsin’s Supreme Court candidates have embraced national issues in an apparent effort to capitalize on partisan enthusiasm, airing television ads mentioning President Trump and touting the endorsement of Our Revolution, the nonprofit political group spun out of Sen. Bernie Sanders’ 2016 presidential campaign.

Three candidates are running to fill the seat of retiring Justice Michael Gableman on the seven-member Supreme Court: Attorney Tim Burns, Circuit Judge Rebecca Dallet, and Circuit Judge Michael Screnock will face off in a nonpartisan primary on February 20, and the top two candidates will move on to the general election on April 3.

Spending has already started, with Dallet purchasing $83,075 in television ads, according to contracts posted on the FCC website. One ad of note displays an image of President Trump and says, “He’s attacked our civil rights and our values. She’ll protect them.” Screnock has spent $10,588 on radio ads.  

“Judges are not politicians, but the recent history of Supreme Court elections in Wisconsin risks blurring the line,” said Douglas Keith, counsel at the Brennan Center. “Wisconsin’s history – numerous big money races, the Court’s refusal to adopt ethics reforms, and candidates running on national political platforms – all make it difficult for the public to view the court as the fair and independent check it needs to be.”

“This election will be pivotal in determining not only the ideological balance of the court, but also whether it moves Wisconsin closer to adopting stronger recusal rules for all judges who receive campaign contributions or benefit from outside special interest election spending,” said Erin Grunze, Executive Director of the League of Women Voters of Wisconsin. “Wisconsinites have a right to know who is paying for the spending in all judicial elections so they know whether judges and Supreme Court justices are making truly impartial and fair decisions based on the law and not on campaign contributions,” Grunze added. “Without strong recusal and disclosure laws in Wisconsin, justices do not need to reveal where the money to their campaigns comes from, nor do they need to excuse themselves from trying a case involving a donor.”

Read Who Pays for Judicial Elections?, the latest in the Brennan Center and National Institute on Money in State Politics’ Politics of Judicial Elections series.

Spending estimates for the 2018 contests as well as copies of ads and storyboards provided by Kantar Media/CMAG, and estimates based on tracking of FCC filings, will be available at the Brennan Center’s Buying Time 2018 page.

Read more about the Brennan Center’s work on Fair Courts.

For more information or to speak with an expert, contact Naren Daniel at (646) 292–8381 or naren.daniel@nyu.edu.

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