Wisconsin’s business lobby throws its weight into judicial elections

In 2007, the lobby group spent $2.2 million to help elect Annette Ziegler to the state’s high court.

It aims to tip the balance again on April 1. Wisconsin Manufacturers and Commerce (WMC) is financing TV and radio ads attacking incumbent justice Louis Butler, and promoting his challenger Mike Gableman, the former Ashland County district attorney turned Burnett County judge.

With yet another Supreme Court seat up for election in 2009, the campaign to reshape the court as more business-friendly likely isn’t over.

The Butler-Gableman faceoff has noticeable parallels to John Grisham’s current bestseller “The Appeal,” in which business interests target a state Supreme Court judge. Grisham however, did not need to base his novel on Wisconsin.

Over the past 10 years, special interests have become increasingly involved in formerly obscure judicial races. Nationwide millions of dollars are being poured into state Supreme Court races, where decisions affecting billions of dollars in business are made. In all, supreme court justices are elected in 39 states, including Minnesota.

“The dramatic increase in campaign spending in judicial races has some people fearing that big-money politics will scare off good potential judges. Worse, they worry the state's Temple of Justice will be tainted by special-interest money,” the Seattle Times observed in 2006.

“Perhaps we’ll come up with a better way to elect judges, but until then we’re stuck with the current system,” said Reed Hall, executive director of the Marshfield Clinic and a WMC board member.

Hall said the business lobby’s campaign spending is necessary to balance out spending by groups on the opposite side of the race. He said the court’s 2005 decision striking down the state’s cap on non-economic (“pain and suffering”) malpractice claims has raised the clinic’s liability expenses.

ProAssurance, a Wisconsin firm that handles health care liability, actually filed a 7.5 percent rate decrease at the beginning of 2008. “Rates are not dependent on any one factor,” said spokesman Frank O’Neil. He says the judicial climate “certainly has a bearing,” but the impact of a Supreme Court decision can take years to become evident.

Both Minnesota and Wisconsin have hybrid systems in which governors can appoint judges but they are periodically up for election. A Supreme Court term is 10 years in Wisconsin, six in Minnesota.

Wisconsin Gov. James Doyle, a Democrat, appointed Butler to the court in 2004. “Liberals suddenly enjoyed a 5-4 majority on the court, and it swung sharply to the left,” observes a March 24, 2008 Wall Street Journal editorial. “The court systematically dismantled the state’s tort reform laws.”

WMC’s literature derides the court’s “activist” majority for “making, rather than applying, the rules.”

“People use the word ‘activist’ when they disagree with the judge’s decision,” said Tom Basting, president of the Wisconsin State Bar Association.

Some frame the Supreme Court race as a battle between lawyers and business. “Justice Butler’s rulings have made it easier for personal injury lawyers to win bigger jury awards for their clients. Bigger awards mean bigger payments to the personal injury lawyers,” wrote Bill Smith, president of the pro-business Wisconsin Coalition for Civil Justice.

Besides the malpractice caps decision, WMC criticizes Butler for writing the majority opinion on the 2005 “Thomas vs. Mallett" decision, allowing a young man, allegedly poisoned as a toddler by lead paint chips, to sue several paint manufacturers, even though it was unclear which one was directly at fault. A jury rejected the claim last November.

Butler compared the case to 10 people putting poison in a water well, then claiming the victim can’t prove whose poison caused his sickness.

“Sweeping decisions by the Wisconsin Supreme Court promote lawsuit abuse and will seriously damage recent efforts to make our state business friendly,” wrote WMC president James Haney in 2005. “Businesses will be sitting ducks in our state for plaintiff lawyers.”

In the same article Haney predicted Wisconsin’s reputation for fairness in litigation environment — the U.S. Chamber of Commerce rated it No. 17 among all 50 states before the 2005 decisions — “will see another precipitous drop resulting from the recent Supreme Court decisions.”

A flood of lawsuits has yet to materialize, and the U.S. Chamber actually raised Wisconsin’s rank for litigation fairness to No. 10 in 2007. (Minnesota was No. 2).

WMC represents nearly 4,000 Wisconsin businesses employing more than 500,000 workers in the state. It is the result of the unusual merger of three business groups in 1975: Wisconsin Manufacturers Association, the State Chamber of Commerce and the Wisconsin Council of Safety.

Its board includes David Bretting, CEO of C.G. Bretting Manufacturing Co. in Ashland; Edward Schaefer, CEO of Silver Springs Foods in Eau Claire; and Michael Swenson, CEO of Xcel Energy’s Northern States Power Co. unit.

WMC’s campaign ads tout Butler as soft on crime and Gableman as tough. The focus-on-crime strategy aided Ziegler’s election last year. Yet the state Supreme Court mostly deals with civil liability cases, including those that affect business. “Criminal cases are a very small part of the Supreme Court calendar,” Basting said.

Basting also chairs the bar association’s Judicial Campaign Integrity Committee, launched in December to monitor the Supreme Court election. The Wall Street Journal editorial criticized the committee as “self-appointed guardians of fairness” and noted that seven of its eight members are Democrats, “either (party) leaders or donors to Governor Doyle.”

WMC board members also have donated money to Doyle and other Democrats. Board chairman Thomas Boldt, also president of Appleton-based Oscar J. Boldt Construction, gave $14,500 to Doyle between 2002 and 2007. WMC’s Concerned Business and Industry Political Action Committee donated $2,000 to Doyle in 2004.

WMC and other groups on both sides of the election have been criticized for running misleading ads, and for failing to disclose the money sources for the ads. Most organizations that run issue ads are not required to reveal their funding sources.

In 1996 WMC was running ads against state senate Democrats. The state elections board claimed WMC violated campaign finance regulations by not disclosing who paid for the ads. The case went to the state Supreme Court, which in 1999 ruled 4-2 that WMC did not violate the law, though the court recommended that the legislature clarify disclosure rules. As a result of that and later rulings — including the Wisconsin Right to Life case, and a loophole in the 2002 McCain-Feingold campaign finance reform law — WMC and other groups do not have to disclose their funding source for issue ads.

The American Bar Association advocates that judges be appointed based on merit, and urges states that elect judges to consider public financing of judicial campaigns. A public financing proposal for Supreme Court judges cleared the Democrat-controlled state Senate in its last session, but died in the Republican-controlled Wisconsin Assembly.

“Judicial elections are unique from elections for legislators and executives,” states a 2002 Bar Association report. “These latter public officials are elected to be representative of and responsive to constituencies whereas judges are not representative officials but are responsive to the rule of law rather than constituencies.”

Wisconsin has one the most influential state supreme courts in the nation, according to a study published in December by the University of California, Davis Law Review. Wisconsin ranked No. 8 in the number of decisions that have been “followed” by out-of-state courts. (California and Washington were the most influential and Minnesota ranked No. 5.)

WMC has a love-hate relationship with Governor Doyle. WMC ran ads opposing Doyle in his successful 2006 re-election.

In a February address to WMC, Doyle called for government cuts to make up for the state’s $650 million budget shortfall, and pledged not to raise general taxes. He also advocated his proposed package of tax credits to encourage private-sector research and an exemption for capital gains reinvested into business start-ups, measures the group favors.

WMC has sided with the governor on numerous issues: opposing stricter air pollution controls and a proposal by Senate Democrats to raise business taxes.

“Governor Doyle knows that business tax hikes are not going to help grow the economy,” James Buchen, WMC vice president said on March 20. In March, WMC also announced support for Doyle’s proposed tax on hospitals, which surprised many because the group generally opposes new taxes.