Monday, February 7, 2011

This is a test

By Bill Kraus

The upcoming state Supreme Court election has more twists and turns and sets more precedents than any previous contest for this high office.

For a very long time incumbents on the court ran unopposed for re-election. Until recently only one incumbent failed to hold the seat in a contested election. Incumbents ran on their records and, to prove their bi-or-non-partisanship, recruited a prominent Democrat and a prominent Republican to head their campaign committees and coasted home.

Turnouts were light. There were no issues and was little vitriol, even in contests for an open seat where there was no incumbent to be ousted.

All of this changed in the last couple of decades. Incumbents were challenged, attack ads made their way into these polite precincts, and, considering the sedate history of these elections, all hell kind of broke loose.

Another incumbent fell to what many consider to be a very low low in the history of judicial elections with a lot of money and heat being inserted into the process by outside groups. Previous elections were not without endorsements by interest groups and lawyers, but this election went way beyond what had been experienced or thought desirable by most of us.

The current incumbent, David Prosser, who is seeking re-election, avoided all that in his first run after he got the seat by appointment. There was an intra-court coup in play against the chief justice at the time shortly after Prosser took office, and he sided with the chief. This was surprising inasmuch as he was a longtime Republican officeholder and the chief’s sympathies were thought to be somewhat to the left of that. But what it bought him was a free ride with no challenger with Democratic credentials in his first election.

The honeymoon with Chief Justice Abrahamson didn’t last the full 10 years of his term, which may have set the stage for some of the challenges he is facing this year.

The other thing in play this year is the recently enacted “Impartial Justice” election law. Candidates who agree to spending limits and raise a small number of small contributions to qualify are freed from the onerous fundraising that was creeping into these elections and from the suspicion of being bought, which was part of the price one paid for raising that kind of money from people and organizations and even law firms themselves with agendas and issues that might end up in court. Candidates who buy into the impartial justice campaign rules are rewarded with full public financing beyond the qualifying stipend.

This law was not passed so there would be more competition for these offices, but it is undeniable that more hands were expected to go up from people who thought they had the qualifications to be on the Supreme Court and no longer had to say yes to the question “Have you got a million dollars?” when they tried to set up a campaign organization.

Only one of the four candidates for the Prosser seat has not applied for public funding. Her understandable reason is that candidates who accept the rules and limits of the new law are not protected from the participation in this election with expensive ads from organizations with deep pockets and an axe or two to grind. I would have preferred an election where everyone decided to play by the new rules, and I still hope that Marla Stephens's fears about outsiders’ spending will not be realized this year or evermore for that matter.

This may not be a forlorn hope, because the kinds of outsiders that were aggressively in evidence in the 2008 contest between Mike Gabelman and Louis Butler and the people and organizations that funded these “phony issue” ads think they may have gone too far. The fact that none of them showed up for the 2010 Supreme Court election seems to prove something about good taste and fair play, I think.

The case made by the Wisconsin State Journal and other purists who think Supreme Court justices should be nominated by a blue ribbon screening committee and appointed by the governor goes against the Wisconsin culture and will be fatally weakened by the absence of outside money and interests in the election of 2011.

What has emerged as kind of a “Wisconsin system” is imperfect of course, but if this election runs its hoped for (by me) course, it can safely claim to be much less imperfect than all those other systems being proposed to replace it. Here’s hoping.

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