PRESS EDITORIAL: When elections are bad for democracy

Money is pouring into Wisconsin.

Hold the applause. This is not good news, because it’s not good money. It’s so-called dark money from mostly anonymous sources bent on corrupting the impartiality of the state’s judicial system at its highest echelon, the Wisconsin Supreme Court.

Wisconsin doesn’t lead the nation in much these days, but it’s among the leaders in the dark money race. Few states can match the amount of influence-buying cash attracted by Supreme Court elections here.

Even before the Feb. 20 Wisconsin Supreme Court primary election, $1.31 million had been spent by the candidates. By the April 3 general election day, it could be millions more—all in what is supposed to be a non-partisan election.

In reality, it’s a highly partisan election. Rebecca Dallet is running like an anti-Trump, anti-Walker Democrat. Michael Screnock is running like a pro-Trump, pro-Walker Republican. Both are avidly seeking and spending money from special interest groups that hide the identity of their donors from the public.

Most voters intuitively know this is wrong in a judicial election, but if they want to participate in the democratic exercise of choosing judges, they are left with little choice but to make a political decision at the polls.

The New York University Brennan Center for Justice has been tracking ad spending in the Wisconsin high court race and studying its pernicious effect. Among its findings: “When candidates are forced to solicit massive sums from special interests, or run on the hot political issues of the moment, their ability to neutrally and effectively interpret the law is affected.”

What’s more, the dark money is mostly out-of-state money, raising the likelihood that Wisconsin residents will be left to live with court decisions influenced by political interest groups that could not care less about the needs and well being of the citizens of this state.

Past high court elections have demonstrated another damaging consequence of special interest spending: With merit taking a back seat to political considerations, candidates with mediocre legal credentials can be elevated to the Supreme Court.

It doesn’t have to be this way. Wisconsin is clinging to a judicial election process that is used by only 13 states. The most commonly used alternative, merit selection, has been adopted by 24 states and the District of Columbia. It is the method of selecting high court justices that is most immune to dark money influence.

With merit selection, a nominating commission composed of lawyers and non-lawyers, in most cases selected by the state bar, interviews candidates and sends a short list of those most qualified to the governor. Depending on the variation of the system in effect, the governor either appoints a justice or nominates one for approval by the legislature.

After serving one term, justices can be retained or dismissed by voters, based on the jurists’ performance, in a yes-no election.

This system is designed to give the public better qualified justices and protect the independence of the courts against the influence of special-interest election spending—realistic goals that have been reached in states using merit selection.

No judicial selection process is perfectly immune to politics, not even merit selection, which involves a role for partisan elected officials and thus has a political element. Neverthess, the merit-based appointment method provides a stout defense against the influence-buying barrage of dark money that is invited by Wisconsin’s “non-partisan” Supreme Court elections.

The free-for-all high court spending extravaganza is bringing Wisconsin notoriety of the negative sort. National Review magazine, the long-standing voice of traditional conservatism, published an in-depth article on the impact of dark money on Wisconsin’s Supreme Court elections. The article concluded: “Judging is not entirely free of politics. But neither should it be primarily about politics. In Wisconsin, it appears that line is being crossed.”            

It is being crossed by a flood of dark money. To stanch the flow, give up Supreme Court elections.