Nov. 6, 2009 – Accomplishing a major public policy goal of the State Bar of Wisconsin, both houses of the Wisconsin Legislature passed the Impartial Justice Bill on Nov. 5, sending the legislation to Governor Doyle, who has said publicly he will sign it into law.
The public financing legislation, Senate Bill 40, will greatly increase public financing for Wisconsin Supreme Court campaigns.
The State Bar’s Board of Governors has long-supported similar legislation. Senator Pat Kreitlow and Representative Gordon Hintz introduced the bill earlier this year. Legislative passage of the bill comes only one week after the Wisconsin Supreme Court voted 4-3 to adopt new rules stating that neither direct campaign contributions nor independent third-party campaigns will require recusal by a judge or justice.
In the 33-member Senate, where the vote was 19-13 for passage, 17 Democrats and two Republicans voted for the bill and 13 Republicans voted against it. One Democrat in the Senate missed the vote. In the 99-member Assembly, where the vote was 51-42 for passage, the vote was 51 Democrats for the bill and 42 Republicans and one Democrat against it. Six Assembly members missed the vote: four Republicans (two of whom are deployed with the military), one Democrat and one Independent.
The Legislature’s Joint Finance Committee approved the bill on Nov. 3, setting the stage for both the Assembly and the Senate to act on the bill two days later. Eleven Democrats on the Joint Finance Committee voted for the bill, while all four Republicans voted against it.
"This is about clean elections and fair elections," Senator Dave Hansen said during the Joint Finance debate on the bill.
State Bar Past President Thomas Basting testified in support of the bill on behalf of the State Bar at a joint Senate/Assembly public hearing on May 27.
“The State Bar of Wisconsin recognizes the inherent benefit public campaign financing for Wisconsin judicial elections offers as a means to avoid even the perception that contributions to the election campaigns of judicial candidates could influence their decisions,” Basting told legislators in May. “This reflects the unique and critical role that the justice system plays in our system of government.”
“The escalating cost of Supreme Court election campaigns in Wisconsin, highlighted by recent record-setting expenditure levels, has alarmed many observers concerned that the infusion of such large amounts into a judicial campaign poses a threat to both judicial neutrality and public trust in the justice system,” Basting testified.
Under the legislation, money from a $3 check-off on individual state income tax returns will be placed in a Democracy Trust Fund. If the check-off does not generate sufficient funds, the legislation provides a sum-sufficient appropriation under which money will be transferred from the state’s general fund to fully fund the program.
Qualifying candidates for the Supreme Court will be able to receive $100,000 for the primary election and $300,000 for the general election. However, in order to qualify for public financing, candidates must first collect 1,000 qualifying contributions totaling between $5,000 and $15,000.
If a Supreme Court candidate does not accept public financing, that candidate would be limited to accepting no more than $1,000 from each campaign contributor. Under current law, candidates for the Supreme Court can accept up to $10,000 from individuals and $8,625 from campaign committees.
In addition, if a candidate accepts public financing and their opponent does not, the candidate accepting public financing is eligible for up to $300,000 in additional grants to match an equivalent amount of spending by their opponent in the primary election - or $900,000 in the general election – as long as the candidate not accepting public financing spends more than the original public financing grant. Candidates accepting public financing can also receive supplemental grants to counter registered independent campaigns by third-party groups.
However, under the bill, supplemental grants cannot be made to counter so-called “issue ads” run by third parties during a campaign, which target candidates without invoking specific calls to vote for or against a candidate. In the Senate, members rejected an effort by Senator Mike Ellis to amend the bill to allow supplemental grants to counter issue ads.
The Legislative Fiscal bureau estimates that the program when fully implemented could cost as much as $3.5 million per Supreme Court election.
The legislation takes effect December 1, although the $3 income tax check-off will not appear on tax forms until the 2010 tax year. The bill will be effective for the 2011 Supreme Court election.
Several years ago, the State Bar’s Board of Governors addressed the issue of public financing for Wisconsin Supreme Court campaigns and concluded that such a reform would “help maintain the integrity and independence of Wisconsin’s courts, where even the perception of bias destroys public trust and confidence in the justice system.”
When legislators introduced the Impartial Justice Bill in February, Diane Diel, State Bar Immediate Past President, issued a statement supporting the bill, saying, “This legislation is the most direct and visible way to maintain the integrity of Wisconsin’s courts and bolster public confidence in them. The Bar’s position recognizes the fundamental importance of assuring Wisconsin residents and businesses that justices cannot be influenced by contributions to the election campaigns of judicial candidates. I strongly urge other Wisconsin residents to join us in affirming the principle that Wisconsin’s highest court must remain fair, neutral, impartial and nonpartisan.”
In December 2007, all seven members of the Wisconsin Supreme Court at that time wrote a letter to Governor Doyle and all legislators expressing their support for “realistic, meaningful public financing for Supreme Court elections to facilitate and protect the judicial function.” While the court made it clear it was not endorsing any particular bill, the justices stated “The risk inherent in any non-publicly funded judicial election for this court is that the public may inaccurately perceive a justice as beholden to individuals or groups that contribute to his or her campaign. Judges must not only be fair, neutral, impartial and non-partisan but also should be so perceived by the public.”
Recently, prior to this week’s votes, the bill received a public boost at several press conferences held around Wisconsin on Oct. 19, 22, and 27. The press conferences – held in Milwaukee, Madison, La Crosse and Eau Claire – were organized by Lt. Governor Barbara Lawton and featured former Wisconsin Supreme Court Justice Janine Geske, long-time Republican campaign operative and clean elections advocate Bill Kraus, and La Crosse County Circuit Court Judge Ramona Gonzalez.
“The citizens of Wisconsin deserve a judiciary that provides fair and impartial decision-making. Trust in the court system has eroded by virtue of the incredible amounts of money invested into recent Supreme Court races, often on behalf of both candidates,” said Geske, who is now a professor at the Marquette University Law School, on Oct. 22. “The Impartial Justice Bill will play a major role in restoring peoples’ trust that Wisconsin cases will be decided solely on the merits without influence from any particular special interest group.”
Continue to monitor WisBar.org and visit the State Bar’s Government Relations page for updated information on this legislation.
Adam Korbitz is the Government Relations Coordinator for the State Bar of Wisconsin.
Related articles:
In battle over judicial recusal, First Amendment trumped due process rights – Nov. 4, 2009
Recusal not required on account of campaign contribution, independent expenditure of party to proceedings – Oct. 28, 2009
Impartial Justice Bill receives public support at statewide events – Oct. 28, 2009
October rallies to be held around Wisconsin in support of Impartial Justice Bill – Oct. 16, 2009
Senate judiciary committee approves Impartial Justice Bill, holds hearing on Family Justice Bill, other issues – Aug. 25, 2009
Assembly committee approves Impartial Justice Bill, increasing public financing of supreme court campaigns – June 25, 2009
U.S. Supreme Court Issues Massey v. Caperton Ruling – June 9, 2009
State Bar testifies in support of the Impartial Justice Bill – May 28, 2009
Statement of State Bar President Diane Diel in Support of Senate Bill 40, the "Impartial Justice Bill" – Feb. 10, 2009
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