Candidate photos by Eric Tadsen
Janet Protasiewicz and Dan Kelly
The Wisconsin Supreme Court race between Janet Protasiewicz, left, and Dan Kelly, has broken a national record for campaign spending.
Against the backdrop of tomorrow’s election for a seat on the Wisconsin Supreme Court that will see a national record of more than $40 million spent by campaigns and third-party groups distorting the qualifications of both candidates, a historical perspective may be helpful.
Between 1979 and 2011, Wisconsin Supreme Court candidates got a basic grant of public funds for their campaigns if they agreed to limit spending and personal contributions.
And, in that era of naive non-partisanship, Wisconsin taxpayers even paid for those grants with a $1 income tax checkoff that did not raise or lower their tax liability.
Really.
Modern efforts to limit campaign spending for state offices in Wisconsin began in 1973, when the Legislature warned about the dangers of the current scenario of huge donations by billionaires, third-–party groups and political parties that amount to public-policy liens on those who are elected.
That 1973 warning: “The Legislature finds and declares that our democratic system of government can be maintained only if the electorate is informed. It further finds that excessive spending on campaigns for public office jeopardizes the integrity of elections.”
Exactly 50 years later, the campaigns of the two candidates for the Supreme Court seat — former Justice Dan Kelly and Circuit Judge Janet Protasiewicz — have raised more than $17 million. But they will be outspent by third-party groups and political parties pounding end-is-near predictions of what will happen if their candidate loses.
Spending for that seat will set a national record because the winner will side with either the three conservatives or three liberal justices. Conservatives have dominated the court for more than a decade.
Liberal groups and justices back Protasiewicz, whose campaign received $8.8 million from the state Democratic Party. Conservatives, Justice Rebecca Bradley and the state Republican Party champion Kelly, a 2016 appointee to the court who lost a 2020 election.
Jay Heck, executive director of Common Cause in Wisconsin, has been fighting — unsuccessfully — for campaign finance reform in Wisconsin for decades.
“Prior to 2007, Wisconsin Supreme Court elections were relatively low-spending affairs where candidates generally adhered to spending limits and often received some public financing — but increasingly not fully funded because of an inadequate revenue source (the $1 tax-form checkoff),” Heck recalls.
The percentage of taxpayers using the public-financing checkoff dropped from 16.2% in 1983 to 6.2% in 2003.
Then, Heck notes, races “were also much less partisan, with candidates often seeking the endorsement of former governors and legislators of both political parties. Spending by either side rarely exceeded $500,000.”
But, he adds, “By the mid- to late-2000s, outside special interest groups, especially on the right (Wisconsin Manufacturers & Commerce and Wisconsin Club for Growth), cynically calculated that spending heavily to elect a Supreme Court justice of their choosing was more more efficient and less costly than buying control of the Legislature, and weighed in heavily in the 2007 contest for an open seat on behalf of Annette Ziegler over Linda Clifford.”
As a result, Heck says, “Wisconsin had its first $4 million Supreme Court election,” won by Ziegler, now the court’s chief justice.”
When the 2008 campaign cost millions of dollars more, legislators and Democratic Gov. Jim Doyle created the Democracy Trust Fund, and raised the $1 checkoff to $3, to pay for public grants for Supreme Court candidates.
But court rulings — including the U.S. Supreme Court’s Citizens United decision in 2010 — “opened the floodgates to unlimited outside spending,” Heck says.
Still, in the spring 2011 election, the campaigns of Justice David Prosser and challenger Joanne Kloppenburg each spent only $400,000 — “all of it public financing and neither had to raise any private money themselves.” But third-party spending in that race “soared,” Heck recalls.
Later in 2011, Republican Gov. Scott Walker and Republican legislators repealed all public financing laws. In 2015, they abolished campaign spending limits and legalized coordination between third-party “dark money” groups and candidates, Heck says.
The result? “Wisconsin became the ‘wild west’ of campaign spending,” he says. “That's how we arrived at where we are now.”
“It was a deliberate, calculated effort to allow maximum special-interest money and influence to affect the outcome of Wisconsin elections, with particularly alarming and likely corrupting consequences for the impartiality of our state's highest court and a sharp decline in public confidence that the court is above politics and fair.”
Steven Walters started covering the Capitol in 1988. Contact him at stevenscotwalters@gmail.com
