Analysis Law and Policy

The Unbelievable True Story of Wisconsin’s Supreme Court and What’s at Stake (Updated)

Emily Mills

Influence from outside donor groups and a recent lack of accountability for justices presiding over related cases could have serious repercussions for everything from reproductive health and voter access to campaign finance law.

UPDATE, April 4, 10:15 a.m.: Rebecca Dallet won the race for a ten-year term on Wisconsin’s state supreme court, winning 56 percent of the votes to Screnock’s 44 percent as of Tuesday evening.

For well over a century, Wisconsin’s state supreme court was largely considered to be an exemplary legal body, lauded for its fair-minded and rigorous approach. In the past decade, however, there’s been a significant erosion of that reputation, thanks in large part to the enormous influx of outside spending on campaigns, and an increasingly polarized state electorate.

Now, influence from outside donor groups and a recent lack of accountability for justices presiding over related cases could have serious repercussions for everything from reproductive health and voter access to campaign finance law.

There is almost no regulation remaining in Wisconsin when it comes to when and if judges must pull themselves off cases involving campaign donors. That’s largely thanks to a series of decisions on the part of the conservative-dominated court over the past decade. The upcoming April 3 election, when two starkly different candidates will be on the ballot for the state supreme court, will ultimately be a test of whether or not Wisconsin voters are content to let that trend continue.

The Challenge Ahead

One of the court’s conservative justices, Michael Gableman, is not seeking re-election this year.

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In the run to replace him, Michael Screnock is widely seen as the more conservative candidate, touting endorsements by the NRA and enjoying direct funding from the state Republican Party. Of the endorsements listed on his campaign website, Screnock includes Pro-Life Wisconsin PAC—the political action committee of a group that supports “personhood” for fertilized eggs, zygotes, embryos, and fetuses and opposes all forms of man-made contraception—Wisconsin Family Action PAC, and the Wisconsin Right to Life PAC. Both Pro-Life Wisconsin and Wisconsin Right to Life are almost exclusively focused on attacking reproductive access and freedoms. Wisconsin Family Action, headed up by Julaine Appling, also targets LGBTQ people and their rights.

A recent story by the Milwaukee State Journal revealed that Screnock also boasts a record of twice being arrested and ticketed for trespassing and obstructing officers while participating in 1989 protests outside of a Madison, Wisconsin, clinic that performed abortions. “In the context of my life, it’s not something I’ve ever regretted doing,” Screnock told the newspaper in response.

The other candidate, Rebecca Dallet, is seen as the more liberal-leaning candidate, and has said that “what is truly progressive is having independent courts.”

She doesn’t list any organizational endorsements on her campaign website, but Planned Parenthood Advocates of Wisconsin recently announced its support for her in a press release that stated she “can be trusted to uphold the law … when it comes to women’s access to health care.” Dallet has been critical of undisclosed campaign contributions for judgeships, and touts the importance of an independent judiciary.

In addition to her endorsement from Planned Parenthood, she recently gained the support of former Attorney General Eric Holder and the organization he chairs, the National Democratic Redistricting Committee.

The committee supports the legal challenge to Wisconsin’s legislative district maps created by the Republican-controlled legislature—with the help of then-attorney Screnock—that is now pending before the U.S. Supreme Court. He was also one of the attorneys who helped defend Republican Gov. Scott Walker’s 2011 bill that ended collective bargaining for public sector employees.

As of February, the Brennan Center reports a total of $1.3 million spent on this race alone, a significant chunk of which has come from outside groups that don’t disclose their donors.

Where It All Started

Wisconsin’s court elections were relatively sleepy affairs until 2007, when outside interest groups jumped in to help elect conservative Justice Annette Ziegler. After the 2010 U.S. Supreme Court ruling in Citizens United significantly relaxed campaign contribution rules nationally, the fight over the ideological makeup of the state’s highest court has only grown more intense. Currently, a 5-2 conservative majority holds power.

One of the most active outside interest groups is the Koch-affiliated Wisconsin Manufacturers and Commerce (WMC). The group has spent, by its own estimates, at least $7.25 million since 2007 in efforts to elect a more pro-corporate, right-wing majority, beginning with Justice Ziegler. In that race, Ziegler’s own campaign spent $1.4 million, but WMC dropped an unprecedented $2.5 million in undisclosed expenditures to support her. The Koch-funded Wisconsin Club for Growth spent an additional $400,000 in dark money.

A Heated Work Environment

The situation reached a boiling point in 2010 and 2011 with a series of controversial decisions and the arrival of Gov. Walker.

In 2010, with a newly minted conservative majority, the court voted 4 to 3 to adopt rules stating that justices need not recuse themselves from cases where plaintiffs or other interested parties had made a contribution to their campaign.

The new rules were initially drafted by none other than WMC, along with the Wisconsin Realtors Association, which gave more than $1 million to the Wisconsin Club for Growth that year. This would become a crucial point in the John Doe investigation into potential illegal campaign coordination with those outside groups during Walker’s recall elections. The recalls were triggered by grassroots opposition to his 2011 union-busting Act 10 bill. Both the controversial bill and the John Doe investigation wound up before the court, which upheld the bill and shut down the investigation.

The court’s decision to free itself from considerations of bias and recusal had major repercussions for cases involving allegations of misconduct by one of its own members.

In 2011, incumbent David Prosser won a seat on the court by a narrow 7,000-vote margin in an election widely seen as a referendum on Act 10. Prosser spent just $700,000 on his campaign, whereas WMC injected $2 million, according to its own numbers. A new front group, called Citizens for a Strong America, spent an additional $985,000 in support of Prosserand it was only discovered years later that the group was entirely funded by Wisconsin Club for Growth, which had itself spent $520,000 to elect Prosser.

In 2011, during heated discussions within the state supreme court over the fate of Act 10, relations between the conservative and liberal justices began to fray. Justice Ann Walsh Bradley filed a complaint against Prosser for having put his hands around her neck while threatening to choke her (he later claimed it was a “defensive” gesture). The argument arose during a debate over when to publicly release the court’s decision on Act 10. After an unusually speedy process, the conservative majority prevailed on a 4-3 vote to uphold the law, and wanted to put out an after-hours press release declaring it.

The complaint against the justice also included reference to a “tendency towards a lack of proper decorum and civility by telling the Chief Justice”—then Shirley Abrahamson—“in the presence of other Justices, that ‘you are a total bitch.’” Prosser admitted to that offense.

When the complaint necessarily wound up before the court itself for deliberation and decision, Prosser filed to have all of the justices recuse themselves, since they were “material witnesses.” Wisconsin has no current provisions for replacing recused justices with lower court judges, so the move essentially killed the case. Prosser also complained that the Judicial Commission had no right to investigate the case and accused it of having a political agenda against him.

Prosser went on to be part of the conservative majority that voted in 2014 to uphold Walker’s union-busting bill after it came up against several legal challenges. That same term saw the court uphold a new state voter ID law widely seen as being disenfranchising and discriminatory. A report released after the 2016 election showed that an estimated 200,000 eligible voters in the state, primarily Black and Democratic-leaning, were prevented from casting ballots due to the law.

The court further strengthened its conservative majority with the 2015 election win by Rebecca Bradley. Total spending in the race hit at least $4.3 million, thanks to outside interest groups.

In 2016, Prosser retired from the bench. Walker appointed attorney Daniel Kelly to take the spot, who further helped solidify the conservative, “textualist” judicial approach, which emphasizes strict adherence to the wording of the law, according to the Cap Times.

Changing the Rules

Chief Justice Shirley Abrahamson had been a reliable thorn in the side of the conservative majority throughout the battle over Act 10 and other high-profile cases. In 2015, though, the state’s political activists found another way to further cement control over the high court for the right wing: a constitutional amendment changing the rules for how the court got its chief justice.

Since the formation of the court in 1852, the chief justice had been chosen based on seniority. Then the longest-serving member of the court, Abrahamson won re-election to a ten-year term in 2009 under those rules. With the successful passage of the amendment, however, it was left to the justices themselves to vote for their chief.

Practically before the ink dried on certification of the election results, the justices voted 4 to 3 by email to remove Abrahamson from the position and instead installed Patience Roggensack, a reliable conservative. It was done before the court had agreed on a procedure for implementing the amendment, and without the participation of the three other justices.

That same year, the court voted to put a stop to the John Doe investigation that was then plaguing Gov. Walker regarding potential illegal coordination between his campaign and outside groups. Who were those outside interest groups? The very same ones that previously spent millions of dollars helping to elect Justices Gableman and Prosser. Both men refused to recuse themselves from the case.

The investigation stalled for months after a lower court judge ruled that no laws had been violated even if Walker’s campaign worked with the groups. The decision further eroded campaign financing laws in the state and allowed more money to go to candidates without donor names being disclosed.

Fallout from the John Doe investigation and its shuttering continues to this day: The nonpartisan Government Accountability Board (GAB), which assisted in providing records for those working on the case, was dismantled in 2015 by Gov. Walker—along with sweeping changes to state campaign finance law. Walker and conservatives alleged the GAB had engaged in a partisan witch hunt, but a later investigation by the state’s Justice Department cleared its members of any ethical violations.

The GAB, made up of six former judges, had been charged with overseeing elections, campaign finance, ethics, and lobbying.

Reforming the Process

Wisconsin and many other states are faced with the problem of how campaigns for public office are financed, and how that money may influence candidates. Especially in cases of elected judges, the issue has far-reaching consequences for democracy.

The state had a system of public financing for elections, in place since 1978, which was one of the first and best such systems in the nation, according to the nonpartisan Center for Governmental Studies. It was killed by a provision in Gov. Walker’s 2011 budget.

Last year, 54 ex-judges filed a petition with the Wisconsin Supreme Court asking for the reform of its ethics rules to prohibit its justices from hearing cases that involved any campaign donors. The court, however, refused to even hold a public hearing on the matter.

Of the 39 states that hold some kind of election for their supreme court justices, the Center for American Progress found that only two of those scored as poorly as Wisconsin when it came to preventing justices from hearing cases involving campaign donors.

The question remains, then: When candidates are elected to the court, will they help decide cases involving the ideological and partisan groups that have endorsed or contributed money to them?

Right now, the majority of the court votes yes.

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