Wisconsin would seek to manage the influence of campaign cash on judges in a way no other state does, if political leaders and the public approve a constitutional amendment proposed by a special task force of attorneys.
The proposal, which the task force hopes will be introduced in the Legislature this fall, emerged from research the group started 18 months ago in response to ethics complaints and interpersonal turmoil on the Wisconsin Supreme Court that have spilled into public view, and as the flow of money into elections has continued to grow.
The state Bar of Wisconsin committee wants to eliminate re-election campaigns for high court justices by limiting them to a single 16-year term — instead of the unlimited 10-year terms now permitted under the state constitution. Sixteen years is close to the average tenure of a Wisconsin justice in recent decades.
No state restricts its Supreme Court justices to a single term of specific length, according to the American Judicature Society, a nonprofit that advocates for judicial ethics and for appointment of judges whose qualifications have been endorsed by merit panels.
“It would go some way to curing the perception that judges were looking for handouts,” K.O. Myers, research and program director for the group, said of the proposal. “If they aren’t up for election again, it removes the perception that they are ruling to get someone to donate in the future.”
According to data compiled by the society, three states appoint Supreme Court justices for life, but the 16 year-term would be longer than any set term of years in any state. Currently, three states have a mandatory retirement age of 70 for top court judges, but none forbid re-election or reappointment.
The state bar task force initially considered replacing elections with merit appointments, but found no political support, said Joe Troy, a former circuit court judge who chaired the panel.
Political leaders from both parties have said they are open to term limits, Troy said, but he expects resistance from some quarters.
“One of the hurdles we have in gaining support for this change is convincing those who currently have influence in judicial elections — and re-elections — that we are all better served by justices who focus on the law and the facts of a case, and do not act out of political concerns,” Troy said.
Myers said after a wave of reforms in the 1960s and 1970s, the number of states switching to appointed judges has dwindled.
“People don’t like the influence of money on judges, but they don’t want to give up the right to elect their judiciary,” Myers said.
Other states are searching for ways to make changes, including Ohio, where the chief justice, Maureen O’Connor, in May offered a plan to remove political parties from the selection of judges and lengthen elected terms to restore public confidence that courts are independent.
Wisconsin elects judges on a nonpartisan ballot, but candidates are usually seen as either conservative or liberal.
Wisconsin’s chief justice, Shirley Abrahamson, said term limits won’t halt the influence of money. She suggested a law or constitutional amendment that forces judges to recuse themselves from certain cases involving their campaign donors. An independent review body would be needed to enforce the law, Abrahamson said.
The U.S. Supreme Court’s decision in the Citizens United case promises that court campaigns will only draw more money in the future, Troy said.
In Wisconsin the dollar amounts have already mounted quickly.
In 1999, four justices publicly backed Abrahamson’s opponent in a re-election campaign. The race cost more than any other before it — $1.38 million — and it contributed to the divide on the court.
The split deepened in 2007, when Annette Ziegler beat Linda Clifford for an open seat. The candidates and special interest groups spent $5.8 million — more than four times the previous record. Two years later, challenger Michael Gableman defeated Louis Butler, who’d been appointed to a vacant position by then-Gov. Jim Doyle, a Democrat.
The state business lobby, Wisconsin Manufacturers & Commerce, started throwing its weight into court elections in 2007 after a series of rulings it viewed as anti-business, said WMC president and CEO Kurt Bauer.
“Gableman was pivotal in terms of who was going to be the majority, the conservatives or liberals,” Bauer said .
A primary aim of the term limits proposal is to eliminate super-heated court re-election campaigns that create internal tension when justices believe members of the other faction are trying to unseat them.
Bauer said WMC hasn’t taken a position on the proposal, but he doubts term limits would have prevented the 2011 physical altercation between Justices David Prosser and Ann Walsh Bradley that focused public attention on problems in the court.
“If you look again at those last four or five races, I don’t think money has been a problem,” Bauer said. “Democracy isn’t supposed to be easy.”
The ranking Democratic member of the Assembly Judiciary Committee has introduced several bills to address problems related to recusal and elections. Rep. Gary Hebl, D-Sun Prairie, said the public is wary of mixing money with courts.
“The citizens have some significant concerns,” Hebl said. “I think this proposal is trying to take out some of the money influence, and it certainly appears that there is some money influence.”
Rep. David Craig, R-Big Bend, who chairs the Assembly Judiciary Committee, said he wants to hear more, but he feels the current 10-year term is a “huge insulator” between justices and influence of campaign money.
UW-Madison political scientist Barry Burden said term limits would be an improvement, but could lead to even more spending.
“That could help improve the public’s view of the court and make for an even more independent judiciary,” Burden said. “It does not, however, remove the influence of big spenders from judicial elections.”
A constitutional amendment must be passed in two consecutive sessions of the Legislature and be approved by voters.
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