Public Financing in Judicial Elections: A Lesson from Wisconsin

by Gary Marx

As Bench Memos has noted before, Wisconsin’s state supreme court is a key battleground in the national fight over the role of courts. In 2008, conservatives gained a narrow 4–3 majority on the court when Mike Gableman defeated incumbent Justice Louis Butler, a liberal judicial activist. Justice Butler’s defeat resulted in a dramatic shift in the court’s jurisprudence, and earned him the honor of being nominated to a federal district court in Wisconsin by President Obama.

Wisconsin voters will soon have another opportunity to decide the court’s direction. Incumbent justice David Prosser, the senior conservative on the bench, is up for reelection to another ten-year term on April 5. He is being challenged by three liberal candidates — an environmental lawyer for the state, a leading public defender, and an also-ran solo practitioner.

Earlier this week, Prosser and two of his challengers filed paperwork showing they had received at least 1,000 small-dollar contributions, which entitles them to public funds under the state’s crazy new public-financing law, the “Impartial Justice Act.”

In an interesting twist, candidate Marla Stephens, director of the appellate division for the state public defender’s office, did not apply for public financing. When she announced her campaign in October, Stephens pledged to participate in the public-financing system. That surprised no one, because her campaign treasurer is Tom Basting, the former president of the State Bar of Wisconsin who pushed hard for the new public-financing law. As Basting argued in 2009, the law is “a means to avoid even the perception that contributions to the election campaigns of judicial candidates could influence their decisions.”

Yet on Tuesday, Stephens’s campaign declined to file for public financing, saying in an e-mail to supporters: “We want to have the resources we need to get our message out to the whole state.” So, the election has barely begun, and she has already broken a promise and lied about the reason. Rather than admitting that her flailing campaign lacks sufficient grassroots support to be taken seriously, she and Basting have abandon their principles and previous positions to peddle cynical spin about “having the resources to get our message out.”

Once convinced that judicial elections were a problem because of campaign contributions, the good-government crowd is now out to raise more money than anyone else. That’s an interesting message.

Gary Marx is director of the Judicial Crisis Network.

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