It is no secret that Wisconsin Supreme Court elections have become increasingly cruel and unusual in recent years. There are plenty of reasons for the degeneration of these contests for control of one of the three branches of state government:
• Out-of-state special interest groups and billionaire donors figured out that they could pour money into Wisconsin and buy seats on a court that frequently weighs in on cases that could impact their bottom lines.
• Political parties waded into officially nonpartisan contests and turned them into partisan slugfests.
• Candidates lied to the voters to try and cover up their biases, rejecting more transparent approaches that would treat the electorate with respect.
As the stakes have risen, spending has increased exponentially, the discourse has coarsened and tactics have grown ever more desperate. Those who thought they had seen the worst of it with disgraced former Justice Michael Gableman’s blatantly racist campaign to unseat Justice Louis Butler in 2008 now know that the race to the bottom is continuous.
That was clearly the case in the 2023 Supreme Court race between Judge Janet Protasiewicz, a veteran prosecutor and jurist, and Dan Kelly, a lawyer for right-wing causes and for the Republican Party who, after being appointed to the high court by former Gov. Scott Walker, was turned out of office by voters in 2020.
As we write, the votes are still being counted in the Protasiewicz-Kelly race. But we already know that it was the most expensive in the history of judicial races in Wisconsin and nationally. Spending reached into the tens of millions, with a substantial portion of the money that backed both candidates — but especially Kelly — taking the form of so-called “independent expenditure” ads.
Most of the ads, from the candidates and their supporters, were negative. Many stretched the truth to the breaking point. All of them provided a reminder of the desperate need for campaign finance reforms to get big money out of politics in general, and out of judicial races in particular.
We understand that many Wisconsinites dismiss all the negative ads as part of a disgusting whole. But two groups took the low road to new depths in 2023.
That would be the state’s special interest lobby for corporate interests, Wisconsin Manufacturers & Commerce, and Fair Courts America, a more recent addition to the right-wing attack machine funded by Illinois billionaire Richard Uihlein.
Long an influential player in Wisconsin politics due to its heavy spending on behalf of candidates who agree to do its bidding, WMC has a history of meddling in court races. And they have done so with considerable success.
For more than a decade, the court has been dominated by corporate-friendly majorities, and that has been particularly true in recent years. That’s good for WMC and its members — and for billionaires like Uihlein — who benefit enormously from decisions that prioritize the profits of corporations over what’s best for workers, communities and the environment.
This year, WMC and Uihlein feared losing the 4-3 conservative high court majority that has served them so well. In desperation, WMC's political arm, the Wisconsin Manufacturers & Commerce Issues Mobilization Council, and Fair Courts America poured more than $5 million each into efforts to help Kelly and harm his more experienced rival. WMC ran an ad attacking Protasiewicz for her handling of a Milwaukee rape case.
Fair Courts America ran a similar ad referencing the same victim.
WisPolitics described the WMC commercial this way: “The ad features the narrator recounting a rape case interspersed with a female voice reading from the victim impact statement. That includes recounting ‘endless nights plagued by nightmares.’ The narrator says Protasiewicz — a Milwaukee County judge — ignored the victim’s pleas, and now the rapist is back on the streets.”
It concluded with the message, “Tell Judge Protasiewicz, stop failing victims, and stop protecting criminals.”
That’s standard fare for WMC and groups like Fair Courts America. But this time they got called out for crudely exploiting the story, and for doing so in an inaccurate manner.
“The victim at the center of a rape case featured in state Supreme Court attack ads says she is being retraumatized and revictimized by the media blitz,” said a Milwaukee Journal Sentinel report on a woman named Emily, who came forward to challenge the ads.
“It immediately took my breath away,” Emily told the Journal Sentinel. “To see it in action. I wondered if there was any thought put into the human beings behind the cases. I am a human being who wants peace.” The paper further reported that Emily “said she did not want to participate in the ads and did not want her case to be featured.”
The outcry over the ads led to calls for television stations to pull it, with an attorney for the Protasiewicz campaign reminding the stations: "Your publishing of defamatory content is particularly inappropriate given that, unlike candidates, independent political organizations like WMC and Fair Courts America do not have a right to command the use of broadcast facilities. Because you need not air this ad, you bear particular responsibility for its content when you choose to do so."
After initially defending its ad, WMC pulled it. But the group’s officials refused to comment on the controversy.
Pulling the ads was an appropriate but insufficient response. It appears that Fair Courts America kept its ad running into the final days of the campaign.
WMC’s and Fair Court's leaders should recognize that they went way too far. They should apologize for retraumatizing the rape victim, whose story they exploited. They should apologize to the voters of Wisconsin for the ugliness they infused into the 2023 election cycle. And they should do some heavy soul searching with regard to the destructive role they are playing in Wisconsin politics.
