Speech Nazis

The second century of the American experiment was just coming to a close and the First Amendment was 185 years old when the U.S. Supreme Court radically reinterpreted the meaning of free speech. In 1976 the court ruled that money is speech.

Having legislated from the bench that money talks, the nation's highest and most activist court dictated early last year that money can talk as much as it wants. No limit can be placed on election spending by corporations and other interest groups.

Now the Supremes have an Arizona public financing law in their sights. Judging from this week's oral arguments, it's certainly possible if not likely that the court will strike down a key component of the law as an unconstitutional infringement on free speech. It's a foregone conclusion that Justices Roberts, Scalia, Alito and Thomas will vote to invalidate the law approved by Arizona voters back in 1998. Justices Breyer, Ginsburg, Sotomayor and Kagan seem likely to uphold it. The law's fate rests with Justice Anthony Kennedy, who said he is "tempted" to strike it down.

If the court does indeed do that, it will be effectively ruling that not only does money talk and not only can it talk as much as it wants, but any effort by the public to enable those who are not well-endowed financially to get a word in edgewise violates the First Amendment right of free speech.

As Jerry Seinfeld would say, we are entering Bizarro World. When it comes to free speech, the United States Supreme Court seems poised to take us to a place where up is down and everything is opposite of what common sense tells you.

Arizona's law bans no speech. It places no restriction of any kind on any sort of speech. If candidates or interest groups are speaking, the law enables others to speak too. It creates more speech. But by the Bizarro logic that five of the nine Supreme Court justices seem to be applying to the situation, creating more speech infringes free speech.

The First Amendment is 45 words long. It does not say money is speech. Nowhere does the word money appear. Nowhere does it say a state cannot take steps to prevent politicians from being bought and our government from being owned. The money-is-speech doctrine does not come from an act of Congress or any state law. It is a judicial invention.

Nowhere in those 45 words does it say that corporations are people. In fact, the word corporation does not appear a single time in the entire U.S. Constitution or any of its amendments. The money-can-talk-all-it-wants doctrine granting corporations free speech rights and allowing unlimited corporate spending on elections cannot be found in the text of the Constitution or the First Amendment, and it does not owe its origins to an act of Congress or any state law. It is another judicial invention.

These unelected judges-for-life are now working on the completion of an unholy trinity in campaign finance jurisprudence. Money talks. Money can talk as much as it wants. Money should do all the talking. Nowhere in the First Amendment does it say that speech is a privilege that must be purchased at great expense. Nowhere in our founding documents or in the law does it say it is impermissible to try to establish a more level playing field in elections by enabling those who are not outlandishly wealthy to be heard. For the court's current five-member to say so would be the latest judicial invention.

Sleaze Begets Sleaze

Hate begets hate. Violence begets violence. Words variously attributed to Dr. Martin Luther King and Mahatma Gandhi. Words inspired by scripture. Gospel of Matthew, verse 26:52. Words thrown into sharp relief by the current race for a seat on the Wisconsin Supreme Court.

Justice David Prosser has responded angrily to what he calls a "despicable ad" aired by a shadowy front group known as the Greater Wisconsin Committee. Prosser is correct. The ad is despicable.

He also claimed it is "the worst ad that has ever been run in a judicial campaign." Now that is a real stretch. It's vile, but when it comes to taking liberties with the truth, Greater Wisconsin's ad isn't nearly as bad as Michael Gableman's Willie Horton ad. When it comes to cynically playing on fear of crimes against children, this one is no worse than the lurid ad the state teachers union sponsored a few years ago. Then there were the hit jobs by Wisconsin Manufacturers and Commerce, including the infamous "Loophole Louie" ad and another that twisted the facts in the so-called "letter from the grave" case beyond recognition. Greater Wisconsin Committee is up against stiff competition in the sleaziest ad category.

David Prosser has every reason to be upset. There's no excuse for the kind of raw sewage this group is slinging in his direction. Just as there is no excusing Prosser for letting Gableman off the hook for telling an outright lie in what likely does qualify as the worst ad ever run in a judicial campaign in Wisconsin. What goes around comes around. Prosser allowed slime to go around without consequence. Now it has come around and he's been slimed.

Big Biz's Non-Denial Denial

Organized boycotts of companies that supported Governor Scott Walker's election are unquestionably giving some businesses around the state a bad case of heartburn. So bad that Wisconsin Manufacturers and Commerce was moved to condemn the actions, and the state car dealers' association sent their members a script on how to respond to angry customers.

Boycott websites like this one and Facebook pages including one with nearly 23,000 followers as of today are directing people to our website to see who donated to Walker. Traffic to wisdc.org has spiked dramatically with nearly 9 million hits to the site in just the last six weeks. In 2009 we had 3.2 million hits the whole year, which was by far the most we'd ever seen in a odd-numbered year.

Businesses that have become targets of boycotts are singing from a common hymnal in defending themselves. Their stock answer is to say individuals employed by their companies may have donated to Walker, but the companies themselves didn't. In most cases, that statement is true, as far as it goes. But it's what Woodward and Bernstein used to call a non-denial denial.

A business claiming it has not directly contributed to a candidate in Wisconsin out of its corporate coffers is not saying much. It has been illegal for corporations to give directly to candidates for over 100 years, and it remains illegal today. But companies can and some do establish political action committees (PACs) for the purpose of making campaign donations. Like KochPAC and M&I Political Awareness Fund.

Then there are the individual donations. Business leaders base their response to boycotts on a claim that company employees make their own decisions about campaign contributions and are free to support whoever they please. But if you look at the timing of individual donations by employees of a particular company – like, say, Kwik Trip – it's amazing how often you see a bunch of contributions all come in at the same time. If these employees are all making their own decisions, then how is it that they so frequently write checks to the same candidate on the same day? The unmistakable pattern that emerges when you follow the money makes it obvious that top executives and managers are doing the bidding of their companies.

Finally, there's one more pertinent piece of information some businesses aren't volunteering when they say they shouldn't be boycotted because they didn't financially back Scott Walker. Namely the sizeable donations they made to non-candidate committees and front groups that used the money to sponsor advertising supporting Walker. Koch Industries made $43,000 worth of donations directly to Walker's campaign through its PAC. But the company also gave $1 million to the national Republican Governors Association, which spent $5 million on advertising to help elect Walker. Kwik Trip chipped in $25,000 to the RGA. Top execs at Menard's gave a lot directly to candidates, but the company also sent the RGA $25,000.

The Great Recession's Great Divide

I've never seen people in Wisconsin more divided politically than right now. Our elected officials are hopelessly polarized, but we need to come to terms with the fact that it's because the people they represent are just as polarized.

Two messages that showed up in my e-mail inbox within minutes of each other yesterday were vivid reflections of that polarity.

One said "I looked at your website and unfortunately, your claim to be non-partisan must only mean you don't include political parties. Your (website) speaks loudly for who you really are – pure liberal and leftist. Why lie about who you are? Oh wait...that's an attempt to mask yourself in a cloak of darkness so the 'un-thinkers' of the world only see your false face. Such poor behavior."

The other said "I counted 8 articles written about Scott Walker in the last 6 years on your blog. Maybe there were more, but I didn’t see them when I did a search on your site. And I found 91 articles which were less than flattering about Governor Jim Doyle. (T)he propensity to attack a Democrat and not attack a Republican so much is a little questionable here. So, do you really think you made things 'better' by making it easier to get Democrats to switch over and vote for Walker? I don't. You might want to consider that, the next time you work at being 'neutral.'"

With apologies to Abraham Lincoln, you can please some of the people all of the time, and all of the people some of the time, but you cannot please all of the people all of the time.

Or maybe, at this moment of foul moods, there's no pleasing much of anyone.

The First Recall Election

Live by the sword, die by the sword.

David Prosser is a partisan. Started out as an aide to a Republican congressman. Went on to serve as a Republican district attorney. Then as a longtime Republican assemblyman. Eventually became speaker of the house. Was appointed to the officially nonpartisan Supreme Court by his friend Tommy Thompson, both a reward for Prosser's years of labor for their party and salve on the wound opened when he lost his bid for a seat in Congress to a TV anchorman.

While on the bench Prosser agreed to be a character witness for his friend Scott Jensen. And he carried water for key GOP backers Wisconsin Manufacturers and Commerce and the Wisconsin Realtors Association, allowing the two groups to write new judicial ethics rules permitting Wisconsin judges to rule on cases involving their biggest campaign supporters.

Prosser hired a Republican operative to run his reelection campaign, and when Scott Walker was elected governor, Prosser's campaign was eager to hitch his wagon to Walker's. The campaign issued a statement saying that, if reelected, Prosser would serve as a complement to the new governor and his allies in the Legislature.

As Walker's push to strip public workers of their bargaining rights whipped up into a political firestorm, Prosser has tried to back away from his campaign's statement. But he undercut his attempt to distance himself in recent days when he told newsman Bill Lueders that he has "the most partisan background of any member of the court" and both parroted Walker's message and seemed to give the governor friendly advice by saying it is "imperative that the state get its fiscal house in order (and) send a message that this is a great place to do business. (And) it would seem to me that the governor makes his strongest case when he can show a linear relationship between the proposal he makes and our fiscal situation."

Them's fightin' words to those inflamed by Walker's union-busting actions and Robin Hood-in-reverse budget plan. Walker's opponents see a linear relationship between the governor and Justice Prosser, and they see it because Prosser himself has gone to great lengths to make it plainly apparent. April 5 will be the first opportunity for those who have been marching in mass and circulating recall petitions and boycotting business donors to voice their displeasure through the ballot box. Making the election for the supposedly nonpartisan Supreme Court a very partisan referendum on Scott Walker and his allies. Making it the first recall election.

Justice Prosser's Scott Problem

Next month's state Supreme Court election got a lot more interesting in the last two weeks. On the surface the contest is between sitting Justice David Prosser and Assistant Attorney General JoAnne Kloppenburg and will decide whether the conservative faction on the high court maintains its majority or control of the court swings to the left. But with historic demonstrations erupting over Governor Scott Walker's union-busting "budget repair" bill, this election will be more than anything a referendum on Walker.

Prosser has a Scott problem, to put it mildly. In announcing last December that he was hiring a Republican operative to run his reelection campaign, Prosser made no bones about the fact that he sees himself as a teammate of Scott Walker and his GOP allies in the Legislature. Despite the fact the Supreme Court is supposed to be a nonpartisan office and despite the constitutional separation of powers between co-equal branches of government that is central to the checks and balances in our system, Prosser said if reelected he would be "acting as a common sense complement to both the new administration and Legislature."

Prosser already has demonstrated his loyalty, siding with two of Walker's biggest political supporters – Wisconsin Manufacturers and Commerce and the Wisconsin Realtors Association – in voting for new judicial ethics rules written by the two groups allowing Wisconsin judges to rule on cases involving their biggest campaign supporters.

Walker is not the only Scott who looms large in Prosser's reelection bid. Prosser is an ex-Assembly speaker who agreed to serve as a character witness for Scott Jensen when his friend and former colleague was accused of criminal misconduct in public office. Prosser also was prepared to testify that when he was speaker he did the same things Jensen was criminally charged for.