Nonpartisan in name only

The race for Wisconsin Supreme Court justice that will end with the April 4 election is making history for its record-breaking campaign contributions. But it will also go into the record books for the amazing conversion of supporters of one of the candidates to the religion of nonpartisan Supreme Court elections.

The political activists and organizations that turned loose the politicization of past Supreme Court elections are pouring money into the campaign of Daniel Kelly, who has made the condemnation of his opponent for voicing her political views his main campaign issue.

Kelly backers who were silent when past conservative court candidates pulled political levers to win election are now expressing righteous outrage over his opponent Janet Protasiewicz’ temerity in revealing her support for fair district maps and the right to choose abortion.

Protasiewicz has not said how she would rule if those issues reach the Supreme Court, but Kelly has called her comments “egregiously inappropriate.”

The forthrightness of Protasiewicz in stating her personal political opinions may be unusual, but since 2008 all Wisconsin Supreme Court elections have been political contests in practice if not in name. The good ship Nonpartisan has sailed, and it’s not coming back.

Kelly is a prime example. While preaching judicial holiness, he has been sending unmistakable political signals to voters and donors, including Richard Uihlein, the billionaire backer of  conservative candidates who is supporting Kelly with a $1.5 million contribution funneled through the political action committee Fair Courts America.

Kelly was on the payroll of the Republican National Committee until recently, ran his last campaign from the Wisconsin Republican Party’s headquarters, was an adviser to Wisconsin’s fake electors and last year joined Michael Gableman on a so-called “election integrity” tour of the state.

That was an interesting pairing. Gableman’s current notoriety stems from his fruitless and much ridiculed search for fraud in the 2020 election at a cost to taxpayers of roughly $2 million, but he also has the distinction of being the Supreme Court candidate who inaugurated the trend toward politicized campaigns powered by vast amounts of money from special interest groups.

That was in 2008, when Gableman spent some of his trove of political interest money to buy vicious attack ads weaponized with false claims and barely camouflaged race baiting to smear his opponent, Louis Butler, who had been appointed as the first Black Supreme Court justice in Wisconsin history. The Wisconsin Judicial Commission charged Gableman with an ethics violation for dishonest campaigning.

Make no mistake. Both candidates in the 2023 Supreme Court election are running on politics. The comments by Protasiewicz on abortion and redistricting are appeals to voters of like mind. Kelly has been courting support from conservative voters by publicly touting his socially conservative political views ever since he lost the 2020 Supreme Court election. And, of course, both candidates are aiming their political messages as much at big-money interest groups as voters. It’s working splendidly.

This election is expected to break the national record of $21 million spent (in Pennsylvania) on a state Supreme Court race. Protasiewicz, whose fundraising has included contributions from out-of-state liberal groups, has been leading in campaign spending, though the full effect of the Uihlein megadonation in the political ads that will be bought for Kelly in the weeks leading up to the election has not yet been tallied.

The big money is meant to buy big influence on the state’s highest court, and only the naive would say it doesn’t work.

This is the legacy of the U.S. Supreme Court’s execrable Citizens United decision, which allows unlimited expenditures by political action committees provided there is no coordination with the candidates they support, which has proved to be an utterly unenforceable requirement.

Until that ruling is reversed, state Supreme Court elections will not only be partisan, they will be owned by political organizations funded by wealthy influence buyers.