Justice David Prosser is being challenged by liberal JoAnne Kloppenburg. Money pours into Wis. court race

A conservative judge’s campaign for reelection to the Wisconsin Supreme Court has become the next front in a growing multistate Republican effort to limit the power of organized labor.

The once-obscure judicial race, which will be decided in an election Tuesday, has taken on national implications, both because Gov. Scott Walker’s signature legislation stripping public unions’ bargaining powers could be decided by the court and because it’s the first time voters have gone to the polls since Walker signed the bill that sparked the national push.


The contest between incumbent David Prosser and liberal challenger JoAnne Kloppenburg has attracted an infusion of outside spending that could total as much as $5 million. Much of it has been expended on increasingly ugly ads funded by independent groups that either have a stake in the Wisconsin union fight or see the outcome of the court race as a potentially symbolic pivot point on an issue with major implications for the 2012 election.

Dozens of groups have become involved in the race — some with major union backing, one with deep-pocketed backing from Wisconsin businesses and other online liberal activists, anti-abortion organizations and tea party forces, such as the Tea Party Express and American Majority.

And, in perhaps the ultimate indication that the race has become a national lightning rod, former Alaska Gov. Sarah Palin weighed in Friday, endorsing Prosser.

“It looked like this was going to be a relatively sleepy affair [in which] the incumbent was going to coast to victory,” said Mike McCabe, executive director of the Wisconsin Democracy Campaign, a nonpartisan watchdog.

“But everything changed about seven or eight weeks ago when all hell broke loose in Wisconsin and almost instantly this race became a referendum on Scott Walker — and a dogfight,” said McCabe, whose group is tracking groups getting involved in the race.

Adam Green of the Progressive Change Campaign Committee said “if Prosser loses, it that will show that Republicans have awoken a sleeping giant in the electorate with their war on working families.”

Through Saturday, Green’s group, which is also raising money for recall campaigns against GOP Wisconsin state senators who supported Walker’s bill, had placed 27,000 phone calls urging Wisconsinites to vote for Kloppenburg.

Her victory, he added, “would have big ripple effects, both in terms of giving momentum to the recall efforts and, nationally, it would show that Republicans are about to lose a lot of elections in the near future.”

On the other side, the Tea Party Express, a political action committee, has spent more than $150,000 airing an ad that calls Kloppenburg “an activist judge” whom “big union bosses … can control.”

“ We got involved because the left wants to use success in Wisconsin as a warning to fiscal conservatives in other states: Don’t try to get serious about getting the budget under control because we’re just going to stand in your way, ” Sal Russo, a California GOP operative whose firm runs the PAC, told POLITICO.

Through Friday, outside groups had spent a total of $2.4 million on television ads in the Supreme Court race, according to data provided by the tracking service TNS Media Intelligence/CMAG to the Brennan Center for Justice at New York University School of Law, which analyzes judicial races.

Of the $5 million McCabe predicted could be the total price tag for the race, only a fraction will have been spent by the candidates, all of whom participated in a new public financing program that gave their campaigns $400,000 to spend, but barred them from raising or spending private money on top of that.

“The candidates have been pushed to the sidelines, and we’re getting to a point where they’ve almost become bystanders in their own election,” said McCabe.

The race, for one of seven seats on the court, is technically nonpartisan. The court is currently comprised of four reliable conservatives, two liberals and a swing voter who has strong ties to the GOP, meaning a Kloppenburg victory wouldn’t create a reliable liberal majority, according to McCabe.

But outside groups have framed the Prosser-Kloppenburg tilt as a partisan battle for control of the court with the fate of Walker’s collective bargaining reforms hanging in the balance.

Liberal groups are portraying Prosser, a former Republican state legislator, as Walker’s short-tempered puppet who would uphold the collective bargaining reforms included in the governor’s budget bill and other rules clamping down on unions, while conservatives have branded Kloppenburg, an environmental litigator for the state, as a puppet of Big Labor who would vote to overturn the bill.

Liberals seized on a December press release from Prosser’s campaign asserting he would be a “common-sense compliment (sic) to both the new administration and [the] Legislature,” which Prosser subsequently disavowed, saying he did not approve it before it went out.

And conservatives have highlighted Kloppenburg’s declarations that she would act as “a check and balance against overreaching by the executive and legislative branches” – an overreach she suggested was illustrated by Walker’s budget bill.

The Tea Party Express warned Sunday in a fundraising email that “if radical liberal Joanne Kloppenburg wins, then Barack Obama and his union thug allies will have won.” On the other hand, it asserted “if conservative Justice David Prosser wins, then Gov. Scott Walker and the tea party movement will have won in Wisconsin. The stakes could not be higher.”

And the political arm of the state’s biggest business group, Wisconsin Manufacturers & Commerce, in an email in March, cast the race as an effort by unions “to overturn the November elections, buying an activist majority on the Wisconsin Supreme Court, and grinding our democracy to a halt because Governor Scott Walker has refused to raise taxes to balance the budget.”

The group has combined with the state chapter of the Club for Growth and an Americans for Prosperity-linked nonprofit called Citizens for a Strong America to spend $1.4 million on ads boosting Prosser through Friday, while the political arm of the Washington-based American Majority organizer training outfit is funneling money into local tea party groups for get-out-the-vote activities.

Meanwhile, the liberal, union-backed Greater Wisconsin Committee is airing an ad in which a narrator says, “In the Legislature, Prosser and Walker voted the same way 95 percent of the time, both voting against the middle class.”

The ad features superimposed images of Walker, also a former lawmaker, looming over Prosser next to headlines about legal challenges to the budget bill that hover over a photo of thousands of demonstrators protesting the reforms outside the state Capitol in Madison.

According to the Brennan Center’s data, Greater Wisconsin was the biggest-spending TV advertiser in the race through Friday, dropping more than $1 million on a handful of hard-hitting ads, including one citing a newspaper report that Prosser had called the chief justice a “ total b*tch” and another accusing Prosser of refusing to prosecute a priest for sexual abuse.

McCabe asserted in a blog post that “there’s no excuse for the kind of raw sewage (Greater Wisconsin) is slinging in (Prosser’s) direction,” but he attributed the attacks partly to the dominance of untraceable outside money in Wisconsin judicial races.

Adam Skaggs, a lawyer who monitors judicial elections for the Brennan Center’s Fair Courts Project , said that from the standpoint of judicial independence, it’s preferable that outside groups — not the candidates — are soliciting the huge sums of cash, thanks to the public financing system enacted after contentious judicial elections in 2007 and 2008 that cost around $6 million each.

“So that is a silver lining within some other unfortunate and troubling developments,” he said, citing the perception that “judges are being sort of pigeonholed into voting a particular way if a particular piece of legislation — collective bargaining — comes up,” as well as the negative campaigning and the influx of undisclosed special interest spending.

The arm of Greater Wisconsin that is funding the television campaign — like those of all the conservative groups spending big on television ads, except Tea Party Express — are incorporated under sections of the tax code that allow them to shield their donors from public disclosure.

However, other groups under the Greater Wisconsin umbrella have reported major contributions from labor unions and wealthy liberals.

And Heather Colburn, the Democratic operative overseeing the group’s fundraising and spending efforts in the Supreme Court race and the Senate recall campaigns, said the group is raising much of its money for the court ads from “national labor groups” but also from Wisconsinites.

While she said that “nationally, people are paying attention to everything that happens … in Wisconsin, and this election is a huge part of that,” Colburn added that for individual donors outside Wisconsin, “the Supreme Court is a really difficult sell … because it doesn’t really affect them and they haven’t really been involved in those kinds of fights before.”

Colburn, who was Wisconsin director for Hillary Clinton’s 2008 presidential campaign, ran the successful 2009 reelection campaign for the liberal chief justice of the Wisconsin Supreme Court.

She said it’s typically tough to defeat an incumbent justice, though National Review last month cited two sources saying internal GOP polling showed the race near even, and turnout is expected to be high in the state’s two largest Democratic counties — Milwaukee and Madison’s Dane County — where there are elections for open county executive seats.

Colburn said the court race has veered into uncharted territory because of both Walker’s fight with the unions and the new public financing law, which allows outside groups to define candidates more than usual.

“This is the first time [when] the law has silenced candidates it sought to empower,” she said. “Both of these candidates are still relatively unknown, and there is still, even today, a large percentage of the population that’s undecided. So, in my mind, what’s going to happen on Tuesday is a real crapshoot, because when the candidates don’t have money to tell people who they are and what their perspectives are, you’re really in an unusual situation.”