Wednesday, December 9, 2009

Prosser's process

isconsin Political Fix
not just another blog
December 9, 2009

By Bill Kraus

When Justice David Prosser signed the letter from a then-unanimous Supreme Court endorsing full public funding of Supreme Court campaigns, he must have assumed that the funding would be somewhat north of the $400,000 that made it into the recently enacted law.

Prosser now says this is not enough money to run a full-blown, TV ad-driven campaign in the mold of the three most recent contests for the Supreme Court, and that it does nothing to protect a candidate from interventions of “phony issue ads.”

He is right on both counts.

The issue-ad issue was intentionally postponed for another day for fear that an impending U.S. Supreme Court decision could kill the whole bill if it was included.

The money complaint, however, is somewhat disingenuous. It is a minor miracle that the Legislature came up with even that kind of money in these desperate fiscal times.

This is a work in progress, this idea of fully funding campaigns with public money, and as, if, and when the state’s revenue streams get better more money may be available.

For the nonce, however, these are the cards that have been dealt and Justice Prosser, who is up for re-election in 2011, is, as he says, the guinea pig for the whole concept of bringing campaign spending down to earth.

This “guinea pig” campaign can develop in one of several ways.

Prosser may run unopposed, which is not unusual for a sitting Supreme Court Justice, recent campaigns to the contrary notwithstanding. A free ride is less likely now that impartial justice is in effect, because the money barrier for challengers is less daunting.

If a challenger appears and opts to take the public grant and Prosser does as well, both will have to run low media, high shoe leather campaigns consisting of face-to-face campaigning across the state to generate word of mouth support from thought leaders, lawyers, judges, and the like; visiting all the lives-at-five TV shows and other news outlets, up, or down, to and including the state’s weekly newspapers.

As an incumbent who has been on a statewide ballot and has had 10 years to make the kinds of appearances and contacts that are the essence of shoe leather politics, Prosser would have a major advantage, if indeed he has used his incumbency energetically.

If a challenger appears and opts out of the public grant which Prosser takes, the grant to Prosser will be increased to offset the challenger’s spending and the campaign will probably escalate to the media model created by Herb Kohl and emulated in whole or in part by everyone since he penetrated and blew away the dollar ceiling that tacitly but effectively restrained fund raising and spending in Wisconsin campaigns for anything and everything.

If Prosser and the challenger do take the public grant an independent campaign could be mounted by a third-party organization. WEAC comes to mind. Whichever candidate is the victim of the third-party’s attacks would get a compensating grant to offset WEAC’s spending.

If Prosser and the challenger do take the public grant they could come under attack in “phony” issue ads run by a third party of any description. WMC comes to mind. There is no provision in the impartial justice act to offset this kind of “free speech” spending by anyone.

The best and only recourse to this kind of activity is an enemies strategy which asks, “Who are these people, and why are they saying these awful things about me?”

It is possible that the Legislature will pass either SB43 or AB63, which would reveal the names of the people who put up the money for these issue ads in hopes that this will deter this kind of spending, but will surely expose the source of the money for it. This, in turn, will answer at least the first part of the enemies strategy question.

I know, I know, there is a sixth option. Prosser can take a pass on this first tiny, timid, tentative route that the Legislature has offered and opt for the status quo ante with its fundraising from unseemly sources, media-driven-deceptive advertising which has diminished the stature of the judiciary and its practitioners and made recusal a household world.

Impartial justice is what is offered. If we get more civil political campaigns and more restrained spending then so much the better. Justice Prosser will determine whether what the Legislature has wrought is worthy of the name. One can only hope.

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