Justice for sale.

By: Conniff, Ruth
Publication: The Progressive
Date: Sunday, June 1 2008

It was a state Supreme Court race so ugly it made national news. An article on Newsweek 's website compared it to the John Grisham novel

The Appeal .

As in the Grisham story, a white, business-backed challenger used a deceptive, Willie-Horton-style campaign to try to oust the state's only African American supreme court justice.

[ILLUSTRATION OMITTED]

An ad sponsored by the challenger, Mike Gableman, lingered on a picture of Wisconsin Supreme Court Justice Louis Butler's face juxtaposed with the face of a rapist, who also happened to be black. "Louis Butler worked to put criminals on the street," a voice-over intoned. "Like Reuben Mitchell, who raped an eleven-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child."

In fact, Butler represented Mitchell as a public defender, years before he became a judge. While Mitchell was Butler's client he never got out of custody--right up until he lost his last appeal. Butler had nothing to do with his eventual release. He committed his next crime after he had served his time and was out on parole. Today he is back in prison, serving forty years.

Another ad, by the Coalition for America's Families, used lurid graphics to tell the story of an awful rape and murder and claimed Butler overturned the perpetrator's conviction despite "eyewitness testimony" and blood under the convict's fingernails. The trouble is, the DNA evidence didn't match up. On that basis, Butler ruled for a new trial.

Gableman won despite a campaign characterized by outright lies and attacks on Butler for doing his job: representing his clients when he was a lawyer, and upholding the Constitution when he was a judge.

Gableman's campaign was fundamentally dishonest in another way. While the ad campaign focused on lurid true-crime stories, crime is nowhere on the agenda of groups like Wisconsin Manufacturers and Commerce or the Club for Growth, which paid for the ads. In Wisconsin, it was lead paint liability and caps on medical malpractice awards that galvanized business opposition to Butler. But those issues never showed up on TV.

It didn't help that Butler, though he renounced negative campaigning, nonetheless received the "help" of liberal groups that ran their own negative campaign against Gableman.

"The trial lawyers and the unions ended up depriving Butler of any perception of taking the high ground," says James Sample of the Brennan Center for Justice at NYU Law School.

Of the more than $6 million spent on the Wisconsin Supreme Court race, 89 percent came from outside interest groups, and only 11 percent from the campaigns themselves, according to the Brennan Center.

The result: One of the most unqualified candidates ever to front for business interests is now on the court. Gableman garnered the support of only a dozen sitting judges, compared with 225 who backed Butler. As a circuit court judge, Gableman was among the most reversed, on appeal, in the state. So godawful was his campaign that rightwing talk radio host Charlie Sykes had qualms. One Republican district attorney, Steven Bauer, was so appalled by Gableman's campaign he pulled his endorsement.

In the end, the public was turned off by the barrage of mudslinging ads on both sides, and business got its man on the bench.

Bad as it was, the triumph of one unqualified pro-business hack who ran a dirty campaign would not be national news if it didn't represent a more ominous national trend.

"I've watched the flow of political money over the last twenty-five years," says Mike McCabe, executive director of the Wisconsin Democracy Campaign, a nonpartisan watchdog group. "It used to be that most of the big money was focused on Washington. Then you started to see some of the kinds of lobbying organizations and special interest groups come in and seek to heavily influence state elections. So we saw this huge infusion of money."

In the last few years, the money has shifted again, from state legislatures and governors' races to attorneys general and the courts. Business groups "no longer are content with influencing lawmaking," says McCabe. "They now want to influence how laws are enforced and interpreted as well."

Around the country, in the thirty-nine states where judges face some form of election, an influx of special interest money is corrupting the courts.

"It's a phenomenon of the last ten years," says Sample. "The groups pick states to focus on where they perceive the courts to be unfriendly to business."

A national Chamber of Commerce group with the Orwellian name the Institute for Legal Reform coordinates spending on judicial races around the country--and has gotten a tremendous bang for its buck.

"If you can spend millions to elect four members of a seven-member court, compare that to what you'd spend to install a friendly legislature," says Sample.

"What we've got now is a court that the public believes belongs to these interest groups," says McCabe. "There's just an assumption that the judges are a tool of these interest groups. That's a disaster for the court."

The upside of this public disgust is that there is growing support for election reforms, including public financing, laws requiring judges to recuse themselves from cases involving their business backers, and disclosure requirements for front groups that pour millions of anonymous money into ads. The pro-public-financing group Justice at Stake hired a Republican polling firm in Washington, American Viewpoint, and found 65 percent of Wisconsinites favor public funding for supreme court races.

A couple of months before Gableman's election, all seven Wisconsin supreme court justices signed a letter supporting public financing.

Around the country, there is similar support. "So it's a shame that, to date, only two states have bothered to enact public financing," says Jesse Rutledge, deputy executive director of Justice at Stake. North Carolina adopted public financing in 2004, and New Mexico just followed suit with a public financing program that will start this year.

About half a dozen other states have public financing programs in the works. Public financing is a simple matter of passing a state law. It's an easier fix than passing a constitutional amendment to appoint justices.

Fighting Bob La Follette and other progressives pushed for the direct election of Wisconsin's supreme court judges 100 years ago, as part of a package of progressive reforms that included bans on corporate campaign contributions. "Those reforms worked for ninety years," McCabe says. "Then the corporate interests found a way around them in 1996, by avoiding using words like 'vote for' in their ads. Now La Follette's ban isn't worth the paper it's written on."

Still, McCabe takes heart from the progressive era. "If you believe citizens can't overcome the power of organized money you haven't read Wisconsin's own history," he says. "Go back a century. People who were a lot less educated and a lot poorer than we are today succeeded against all odds fighting against corrupt, corporate interests."

Besides, he's motivated by "the knowledge that if the public retreats, it's the greatest gift we can give these interests," he says. "We should deny them that gift just to spite the bastards."

Ruth Conniff is the political editor of The Progressive.

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