Exactly how does one run for the Wisconsin Supreme Court? Only as Dr. Doolittle's Pushmi-pullyu, it would appear.
On one hand, you've got earnest voters asking, 'Please, say something of substance so we can make an intelligent decision." ("Are you one of them-there bleeding heart types?')
At the same time, judicial ethics dictate "don't tip your hand as to how you might vote on a specific case." ('If elected, I promise to overturn Chuck Chvala's conviction on a mind-boggling technicality.")
That is the flypaper on which Michael Gableman became stuck this past week.
Sheriffs and prosecutors backing the Burnett County Judge (He's not from Milwaukee or Madison?!) put out a statement criticizing the incumbent, Louis Butler, for being soft on criminals.
The leftist special interest group One Wisconsin Now filed a complaint -- not to the Government Accountability Board (the merged Ethics and Elections Board) -- but to the newly created Wisconsin Judicial Campaign Integrity Committee (JCIC).
The JCIC issued a finger-waving press release (for that is all it can do), saying judges are supposed to be "arbiters of conflicts" not "representatives for ... law enforcement, prosecutors or defendants."
Now, one must understand that the JCIC is a creation of the State Bar Association, a special interest group. It represents the lawyers, much like the Wis. Education Association Council (WEAC) represents public school teachers, albeit, with loads more class. It holds no more legal status than Michael McCabe's outfit or Blaska's Blog, for that matter.
The campaign letter, signed by three county sheriffs and three district attorneys, contend that Gableman 'understands the need to apply the law and not look for loopholes that expands the rights of criminals."
I agree with the comments by Owen Robinson:
Perhaps Gableman could have worded it a bit differently, but I don't think his statement is out of line at all. It's the kind of statement that has been used in races forever. He is saying that he adheres to a judicial philosophy that allows more latitude and power for law enforcement while Butler believes in a judicial philosophy that allows more latitude and power for criminal defendants. Voters aren't idiots. They get that.
As Gableman campaign adviser Darrin Schmitz put it:
Judge Gableman has said from the beginning of his campaign that he would speak to the issues, records and experiences of the candidates," Schmitz said. "Butler's anti-law enforcement votes are part of his record as a justice.
This is more tinder for those who want to use our taxpayer money to pay for campaigns. It is the Holy Grail of the Left. If they can't have socialized medicine then can't they please have socialized politics in which obscure bureaucrats ration out free speech like butter in post WW2 Laborite England?
The thinking is that the money is tied to no special interest, thereby insulating the justices from any undue influence.
Governor Doyle called for taxpayer financing of state Supreme Court races in his futile call for a special session on campaign finance reform earlier this month. (The Senate Democratic leader put the kibosh on a special session.)
Since then, all seven justices came out in support. Even Blaska's Blog will acknowledge if there is one place for this idea, it is the high court. But it's still a bad idea, just less bad than some others. It is the camel's nose under the tent and will, like most campaign finance reforms, do more harm than good. It will result in all kinds of unintended consequences.
Let's remember, McCain-Feingold gave us the so-called 527 committees that "Swift Boated" John Kerry.
In last year's Supreme Court race, Linda Clifford and the eventual winner, Annette Ziegler, together spent $2.7 million on their campaigns. The idea behind public financing is that it removes potential conflicts of interest: the candidates are beholden to no one.
But that ignores the $3.1 million spent on the Ziegler-Clifford contest by outside groups -- mostly from the Wisconsin Manufacturers and Commerce, which spent some $2.2 million on educational ads that (correctly) labeled Clifford as a leftist.
Has Ziegler been "bought?" Now it transpires that the Wisconsin Realtors Assn. is backing Butler. The Realtors are good for lots of campaign cash. Has he been bought?
The U.S. Supreme Court this summer carved out a big hole in McCain-Feingold, agreeing that such third parties have a right to weigh in on political matters of interest to its members within 60 days of an election. (I will acknowledge that the decision is directed at the legislative branch, which is intended to be responsive to constituents' interests, and not the courts.)
I would hope that Wisconsin Right to Life has as much free speech rights as John Nichols, who has access to a printing press seven days a week.
In Federal Election Commission v. Wisconsin Right To Life, Chief Justice Roberts wrote:
Where the First Amendment is implicated, the tie goes to the speaker, not the censor.
The big money myth
Big money does not always buy elections. If so, Vicky Selkowe would represent the near east side of Madison on the Common Council because she handily outspent Larry Palm. If big money secured nominations, where did Mike Huckabee come from?
According to the Dec. 16 New York Times, Huckabee had spent less than $400,000 in Iowa to Mitt Romney's $7 million but was leading Romney, 29 to 24 percent there.
The U.S. Supreme Court in Buckley vs. Valeo approved limits on campaign contributions but not on total spending. The 1976 decision held that limiting the size of individual contributions (except the candidate's own) might prevent the officeholder from being unduly influenced. But limiting total spending -- whether by candidates or outsiders -- would restrict free speech.
John Samples of the Cato Institute says that:
- Negative political advertising actually improves the democratic process by increasing voter turnout and knowledge.
- Limits on campaign contributions make it harder to run for office, thereby protecting incumbent representatives from losing their seats of power.
Then there is the charge by the good government goo goos that "We're spending too much money on campaigns."
The correct response is "compared to what?" Americans spend between $200 billion and $300 billion on Christmas presents, $36 billion on their pets, $10 billion on pornography and more than $1 billion on toy action figures and accessories.
So wrote Jonah Goldberg of The National Review Jonah Goldberg this past spring in comparing the $1 billion spent in the last Presidential election cycle.
As the economist Robert Samuelson wrote in 2002:
The alleged evils of money in politics are now overshadowed by the evils of strangling free speech.
Free speech ... must not become a lawyerly collection of qualifications, footnotes and regulations and that is where the campaign finance crusade is leading.
Lighting candles instead of cursing darkness
So it comes down to this: candidates for the Wisconsin Supreme Court:
- Cannot say anything of substance and
- Cannot take contributions on their own behalf but cannot stop others -- me, for instance -- from placing a newspaper want ad on their behalf.
Which raises this $6.4 million question: Why elect our justices at all? Why make them campaign for election?
The solution: amend the constitution to allow the governor to appoint justices to the Wisconsin Supreme Court with the advice and consent of the state senate.
I've said this with regard to appointing the DNR secretary (which is the right thing to do): if you don't like the governor's appointments, elect a new governor.
Wisconsin is one of 24 states to elect its high court; eight of them (including Illinois) do so on a partisan ballot. In only seven states does the governor appoint (usually with consent) the court. Those states include New York and Massachusetts.
A permutation of gubernatorial appointment is something called the Missouri Plan. Among its 14 adherents are California, Iowa, and Indiana. This I get from a Wikipedia entry:
An independent commission sorts through applicants for the position and forwards the three most qualified to the governor for his selection. At the next general election, the justice must stand in a "retention election." If a majority vote against retention, the judge is removed from office, and the process starts anew.
That Wikipedia entry notes that even this system is at the mercies of the "independent commission." For my money, governor appoints/senate confirms is straight up and cleaner. Think about it, which is easier to infiltrate by some special interest group: some "independent" commission or two branches of duly elected government?
As noted in Wikipedia:
When it was initiated in 1940, the "Missouri Plan" was seen as a way of keeping politics and special interests out of the judicial selection process and was copied by most of the other states. Unfortunately, the Plan's promise has not been fulfilled. Over the years, the Commission's secretive selection process has become increasingly controlled by the Missouri Bar Association, an organization with close ties to liberal special interest groups.
Hey, we can't have that!