. . . So Help Us God

The Associated Press summed it all up:

"The Wisconsin Supreme Court adopted rules Wednesday allowing judges to hear
cases involving their biggest campaign contributors, siding with business interests and rejecting calls for changes.

Voting 4-3, the court approved rules saying donations by groups and individuals to judges and independent spending to help them get elected do not by themselves require judges to step aside from cases.

The additions to the judicial code of conduct were proposed by two powerful Wisconsin business groups, the Wisconsin Realtors Association and Wisconsin Manufacturers and Commerce, and adopted without a single change."

No one who was in the chamber yesterday could have been surprised by the outcome, as the majority of justices wore their preconceived notions on their sleeves.

I certainly expected a good grilling about the Democracy Campaign's view that there should mandatory disqualification of judges in cases involving their biggest campaign supporters. But after watching the League of Women Voters and two national fair courts advocates endure something right out of Salem, Massachusetts circa 1692, I suppose I should be grateful that I got questions like these. . . .

Quoting Justice David Prosser:

"Haven't you called me a thief?"

"It seems to me that there probably is some concern about the Wisconsin Supreme Court, and a lot of it is tied directly to you."

"Did you kind of suggest humorously that people might consider poisoning Justice Ziegler?"

OK, that's two questions and a declaration that the messenger should be shot, but not before I am assigned far more influence than I actually have.

On the last question, if Justice Prosser had been willing to read the offending passage in its entirety, it would have been clear that I did not suggest, jokingly or otherwise, that Justice Ziegler be poisoned. I was commenting on a remark made by state Appeals Court Judge Ralph Adam Fine.

As for the thief question, here is the item Prosser evidently was referring to. And here is more on the subject. If Prosser had allowed an airing of the truth, the whole truth and nothing but the truth, so help us God, and not just the fragment of truth that reinforces his already-made-up mind, this would have been known to all in the room: First, it was Scott Jensen's lawyers who filed a brief asserting that Justice Prosser agreed to testify that when he was Assembly speaker he had engaged in the same conduct that yielded felony charges against top legislative leaders including Jensen. Second, it was the state's attorneys who called the conduct "theft from the public" (go here and see page six) and a trial judge who called it "secretive but highly organized theft" as well as "common thievery elevated to a higher plane."

For the record, I stand by everything I have written concerning Justice Prosser and I rest easy in the knowledge that anyone who reads what I've written will judge for themselves whether I have shown the "reckless disregard for the truth" that Prosser claims I have exhibited.

Is Stealing Brett Favre Not Enough?

Minnesota. So close and yet so far. Both Wisconsin and Minnesota have sitting governors who are not running for reelection. Amazingly few here are pondering a bid for the opening and even fewer have actually jumped in the race, while just across the border dozens in both parties as well as a couple of independents are jockeying for a shot at the state's top office, and nearly 20 candidates already have thrown their hats into the ring.

What's Minnesota got that we ain't got?

Well, for starters, Minnesota has enforceable spending limits that come along with a functioning system of publicly financed state elections. Candidates there who qualify for public financing have to limit their campaign spending to just over $2 million and get nearly half of that in public funds.

In Wisconsin, on the other hand, we endured a $32 million race the last time around. The winning candidate spent over $10 million. Because we do not have a working public financing system, all of that money had to be raised privately. Creating a field day for special interests. And a huge deterrent to any prospective candidates who are not independently wealthy or willing to take out a second mortgage on their soul.

Aside from Brett Favre, what's Minnesota got that we ain't got? A race for governor that does not have a multi-million dollar entry fee.

Throwing In The Towel On Civics

I got to be a fly on the wall at a discussion of Supreme Court elections last night. Two groups of about 10 or 12. One men, the other women.

In a scene right out of one of Leno's "Jaywalking" segments, none of the men could name a single member of the Wisconsin Supreme Court. One spoke of "that short lady" (presumably Shirley Abrahamson) in an unsuccessful attempt to jog the memories of his fellows. Another mentioned "the woman who works for the banks." (Ouch.) Nobody came up with Annette Ziegler's name either.

The women were better, but not much. Several talked about how horrible the last Supreme Court election was. When asked what was bad about it, one mentioned the "Loophole Louie" ad but couldn't remember much more. Another mentioned "that ad Gableman did." No one pointed out that the election in question was held in 2008. No one seemed to have a clue that there was a more recent election for Supreme Court held earlier this year.

In a speech I gave at this year's Fighting Bob Fest that was later turned into a newspaper commentary, I listed 12 essential nutrients every democracy needs. On my list, #7 is citizenship and #8 is civic education. Judging from what I saw last night, #7 is on thin ice. And judging from a recent column written by a journalist-turned-schoolteacher, so is #8. Among her observations is this:

"For a while, we skipped social studies every Monday while students took standardized tests. It got cut when school let out early for teachers' professional development. Then one day, after a school assembly ran long and I had to administer a math skills assessment, our social studies class was whittled down to just 15 minutes. I threw in the towel."

As I said a month ago on stage and in print, there can be a ruling class or there can be democracy, but there cannot be both. If we are partial to democracy, then preparing our nation's youth to be citizens needs to be as front and center as preparing them to be economically productive.

Any thoughts on the subject Tony Evers?

Old Glory Is So Yesterday

The U.S. Supreme Court will soon decide a case - Citizens United v. Federal Election Commission - that started as a narrow dispute over whether federal election laws should have applied to a pay-per-view cable TV documentary savaging Hillary Clinton that was to air during the 2008 presidential primary elections.

As previously noted, Chief Justice John Roberts expanded the court's review to include two earlier Supreme Court rulings upholding restrictions on corporate spending in elections. Many court observers believe five of the nine justices favor reversing those precedents.

So at a time of corporate excess and irresponsibility not seen in our land since the Gilded Age, the court appears poised to rule that corporations do not have enough political clout and should be allowed to spend even more freely in elections. And rule thusly in the name of the First Amendment.

Never mind the word "corporation" does not appear in the First Amendment. Nor does the word appear even once in the entire U.S. Constitution for that matter. These justices who call themselves "strict constructionists" and claim to be faithful to the original text of the Constitution are getting ready to sweep away century-old laws banning corporate election spending.

Roberts and his ideological soulmates will not be able to base such a decision on what the Constitution actually says. Nor will they be able to find any predecessor on the nation's highest court who wrote a decision proclaiming that corporations are people and possess the same rights as flesh-and-blood citizens, including those rights spelled out under the First Amendment. Instead, the Roberts court will have to take this guy's word for it.

Bancroft Davis. Former president of a railroad company. As the court reporter for the U.S. Supreme Court, he gave railroad companies a great gift in 1886 when he added a comment to the high court's ruling in a case involving the taxation of railroad properties. And in so doing, this one man gave all corporations a great gift by inventing the pseudolegal doctrine of corporate personhood. Out of thin air.

If the current Supreme Court rules in Citizens United the way many legal experts expect, the handiwork of Bancroft Davis will be affirmed and further cemented in place.

If the Roberts court does this, it will not just be naked judicial activism. It will not simply be the very thing they claim to abhor - legislating from the bench. These "strict constructionists" will be effectively rewriting the Constitution.

What next? Redesign the flag? To capture the essence of the Roberts court's mindset, it will need to look this one.

What? There Are Two Parties?

As we continue to wait for the Democrats who control both Washington and Madison to actually do something about money's paralyzing grip on our politics, my thoughts stray to my father.

To dad, politics was simple. He never worked on a political campaign. He belonged to no civic groups. He was a dairy farmer, which occupied him from sunup to sundown seven days a week. He had an eighth-grade education. All he knew about politics came from religiously reading the newspaper. To his dying day, he never once so much as turned on a computer.

Republicans were for the rich, Democrats were for the poor. Republicans favored business. Democrats sided with labor. Democrats made war, Republicans brought on depression. Economically speaking, that is.

He never said so at the supper table, but for most of his life Dixie was home to the Democratic Party. After standing for slavery, Democrats were stalwarts for segregation. Republicans were abolitionists. The party of Lincoln.

Because dad didn't speak of it and because children were to be seen and not heard, no one in our family talked about the political realignment brought on by LBJ signing all the civil rights legislation. Nixon's southern strategy was never a topic of table talk.

Maybe such shifts in the tectonic plates of politics were unwelcome complexity. Republicans are for the rich, Democrats are for the poor. Republicans favor business. Democrats support labor. Democrats make war, Republicans depression. Republicans are tight with a buck. Democrats spend like drunken sailors.

It's hard to say what dad would make of politics today. Republicans are still for the rich, but so are the Democrats. Both are money parties and both now get most of their loot from business. Unions still prefer Democrats, but the Democrats get five times as much money from business and are reluctant as hell to ever cross the guys holding the capital.

No one talks much about the poor. The most Democrats are willing to say is they are for "working families," whatever that means. Wisconsin used to have usury laws. No lender could charge more than 18% interest. Today loan sharks charge the poor over 500%, and the Assembly's top Democrat says capping interest rates at 36% "goes too far." Especially because "there's a lot of jobs that are impacted if you just eliminate the industry." One of his lieutenants who chairs the financial institutions committee justified inaction by pointing out that loan sharks "did not create poverty. It was there before they got there." This from the party of the poor.

Both parties are fond of war. But the Democrats clearly have surrendered the mantle of war party. Prominent Democratic hawks, like Scoop Jackson and Sam Nunn, are long gone. If anything, it's the Republicans who are today's masters of the military-might-equals-national-security mantra.

Neither party is fiscally responsible. Any Republican claim of being better stewards of taxpayer money is demolished by the history of federal deficits since Eisenhower's day. Democrats haven't been bashful about running up debt, but Republicans have done it with even more reckless abandon. Obama is well on his way to evening the score, though.

The political calculus on race has been turned upside down. Today it's the Republicans who most overtly and zealously court the white vote. And it's the Democrats who are friendlier to racial minorities that are fast becoming majorities. Given this emerging demographic reality, it's hard to see how this is a sustainable posture for the GOP.

Circling back to money's influence in politics, it's long since been forgotten that great populist reformers like Teddy Roosevelt and Fighting Bob La Follette were Republicans. The Republican Party is now squarely in money's camp. But so, unquestionably, are the Democrats.

Which leads to the question: What would TR and Fighting Bob do today?

They'd probably do what they did then. Ruthlessly battle their partisan enemies. And fight those on their own side just as fiercely. And then maybe try starting a new party.

Clock Keeps Ticking, Justice Keeps Waiting In Jensen Case

On the right side of our blog's main page above the links, you'll find a clock keeping the time that has passed since former Assembly Speaker Scott Jensen was charged with criminal misconduct in public office for his role in the Capitol caucus scandal. We'll keep it there until the Jensen case is finally brought to closure one way or the other. It will serve as an ongoing reminder of the vast difference between the treatment of ordinary citizens and a prominent political figure in our criminal justice system.

The Increasingly Impersonal Nature Of Being A Person

Other than house-elves, politicians are about the only ones you'll ever hear refer to themselves in the third person. It's an annoying but fairly uncommon habit, even among the political class. There's even a word for it - illeism - but it's hardly a must-have in one's vocabulary.

More common in political-speak is the majestic plural. Nearly every politician nowadays is guilty of this one. Individual persons turning themselves into groups is weird, but that weirdness takes on greater currency now that there's renewed attention being paid to the U.S. Supreme Court's created-out-of-thin-air doctrine that corporations are people.

With the Supremes now seriously thinking of taking this pseudolegal dogma to ridiculous new extremes by letting corporations spend freely in elections, the New York Times asked today in an editorial where the judicial invention of corporate personhood will end. Will they get the right to vote? To hold office? To bear arms?

Good questions. But the sign to really watch for is when they start speaking of themselves in the first person.

How A Court Reporter Made History

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Citizens United v. Federal Election Commission - Jeffrey Toobin
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The Word From Colbert Nation

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Indiana Lawyer Defending Gableman

As state Supreme Court Justice Michael Gableman set out to fight off charges of judicial misconduct, either he felt there was not suitable legal representation to be found in Wisconsin or he couldn't find an attorney in the state who would represent him.

The technically nonpartisan Gableman has gone into battle with James Bopp of the Terre Haute, Indiana law firm Bopp, Coleson and Bostrom as his counsel. Bopp is best known as an anti-abortion lawyer as well as the lead attorney in all the legal challenges to the federal McCain-Feingold campaign reform law. But Bopp also is a member of the Republican National Committee who was part of a small band from the committee's far-right flank that sought to rig the selection process for RNC chair. He then showed his dissatisfaction with the party's choice as he sharply criticized new chair Michael Steele in April for refusing to call President Barack Obama a "socialist."

What's In The Water In Lake Geneva?

When Washington and Madison politics threatens to drive you insane, there's a need for some comic relief. Leave it to Lake Geneva.

The posh resort community is in a state of anarchy after the mayor attempted a banana republic-style coup, suspending four political opponents from the City Council and attempting to replace them with allies who happened to have been defeated in the last election by - you guessed it - none other than the four aldermen the mayor aims to oust.

The overthrow hit at least a temporary snag when the remaining council members balked at meeting to consider the appointed replacements. Leaving Lake Geneva without a functioning government, at least for the time being.

OK, so this is no laughing matter if you're in Lake Geneva. But with Congress and the Legislature returning to work after summer recess, there is both amusement and comfort in the knowledge that madness is not necessarily confined to capitals.

12 Things Every Democracy Needs

The following is excerpted from the text of the speech I gave at Saturday's Fighting Bob Fest entitled "A Democracy Worthy of the Name."

There are some things no true democracy can do without. Think of these as 12 minimum daily requirements, a basic subsistence diet:

1. Free speech

2. A free and independent press

3. Legitimate elections

4. Equal justice under the law

5. An ability to distinguish between democracy and commerce

6. An appreciation for and devotion to the commons

7. Citizenship

8. Civic education

9. A distribution of wealth sufficient to sustain a middle class

10. Religious freedom and a separation of church and state

11. Economic freedom and a separation of corporation and state

12. Dissent

Changes To Records Proposal Hides Information From Public

Wisconsin judges and district attorneys would no longer have to provide information to the public about the property they own under changes made by Democratic legislators to a bill actually meant to increase public access to certain government documents.

The legislative measure was intended to increase public access to Statement of Economic Interest documents filed each year by about 2,100 public officials and others who serve on state boards and commissions. These forms (here and here, for example) describe their economic holdings - like land, buildings, stocks, bonds, business activities and other investments and income. The form also requires them to vaguely disclose the value of each holding.

The legislation would require the Government Accountability Board to post the documents on the Internet. For decades, people who want to see the documents have had to submit a written request, and their names are given to the public officials whose statement are viewed. That practice would stop.

But Democratic Representative Fred Kessler of Milwaukee, a former judge, convinced the committee to change the bill to prohibit the board from releasing information online or in any other form about property owned by judges and district attorneys.

Kessler said he wants the property information for judges and prosecutors kept secret because they are regularly harassed or threatened by people who have been in their courts.

Now no one wants to see judges, prosecutors or any other law enforcement officers put in peril, but the logic for excluding them is hard to pin down.

First, how routinely are judges and prosecutors statewide harassed?

Second, are judges and prosecutors who know the ins and outs of the law better than most of us just letting this pass, and if there is no current remedy, shouldn't there be one regardless of the public access issue raised here?

Third, how would limiting public access to these documents address that problem if the harassment and threats are already occurring?

And finally, some other public officials like state legislators have no doubt experienced harassment and threats so why single out judges and prosecutors for this special treatment?

An Open Letter To John Roberts

Dear Chief Justice,

As you and your colleagues on the Supreme Court deliberate in the Citizens United case, I have two questions for you. Do corporations, labor unions and other organized special interest groups have too little say in the halls of government? Are their voices not adequately heard in election campaigns?

Nearly all Americans would answer "no." Most of the rest would say "hell no!"

The way you and your eight fellow justices answer these questions will decide this case. No pressure, but your answers also will set democracy's course in 21st Century America.

Sincerely,

Worried in Wisconsin

Why Hell Froze

The Democracy Campaign issued a most unusual report today, showing that campaign fundraising by Wisconsin legislators in the first half of the year fell to its lowest level since 1999. In fact, after scouring our archives it appears it was utterly unique. I could find no other report documenting a drop in fundraising. I found this, this, this, this, this, this, this, this, this, this, this, this, this and this, but nothing showing the spigot closing.

In our report we attribute the decline in donations to the Assembly's rule banning fundraising during the state budget process. This wasn't mere conjecture on our part. The numbers told a convincing story. Overall fundraising was down, but it was down most sharply in the Assembly.

Nevertheless, since releasing our analysis this morning we've heard from a few who wonder if the economy had more to do with it than the Assembly rule.

Could be. But if the recession was the cause, then fundraising should have been in a tailspin in 2008 because the economy was already in a freefall. That wasn't the case. On the contrary, all kinds of records were broken in last year's legislative elections.

And back in 2001 in the aftermath of 9/11, the economy sputtered and both charitable contributions and tax collections fell. But the political money kept flowing. In fact, donations to candidates for governor went up six fold over pre-9/11 levels.

What we've seen over the years is a steep and steady upward arc to political giving, regardless of the condition of the economy. It is one of the few things that is truly recession-proof.

Which is why we are convinced that the drop in legislative fundraising in the first six months of 2009 had everything to do with the Assembly ban on budget-season fundraising.

Supremes Ponder Plutocracy

Not many have noticed, but the U.S. Supreme Court is contemplating the mother of all acts of judicial activism. What started as a narrow case dealing with whether federal election laws should apply to a pay-per-view cable TV production called "Hillary: The Movie" has mushroomed into something much bigger, with profound implications for democracy and longstanding federal and state laws guarding against the buying of elections.

After hearing oral arguments in March on the case, Citizens United v. Federal Election Commission, the court's majority decided in late June to expand the scope of issues it will consider, and ordered new arguments in September over whether the court should consider overturning two key precedents involving corporate campaign spending established in a 1990 case, Austin v. Michigan Chamber of Commerce, and 2003's McConnell v. FEC.

The potential consequences are huge. At stake is the future of the 100-year-old wall separating corporation and state that offers at least some protection against the selling of our government. That wall was erected in the form of a 1907 federal law prohibiting corporations from using the capital amassed in their vast treasuries to influence elections as well as Wisconsin's century-old ban on corporate spending in state elections. (A similar federal law applying to labor unions was later enacted and Wisconsin's law is broad and applies to more than just business corporations, as we've noted before.) Also at risk are the new electioneering disclosure rules approved by the state Government Accountability Board but now on hold pending the outcome of the Citizens United case.

If the Supreme Court indeed tears down the old walls and forbids the building of any new ones, it will unleash a new torrent of special interest money into both federal and state elections. Swept away will be laws passed over a century ago by representatives of the people both in Congress and in our state Legislature here in Wisconsin, laws upheld not once but twice by the U.S. Supreme Court itself.

Talk about legislating from the bench.

Better Together Than Alone

The Democracy Campaign is a founding member of the Midwest Democracy Network, a regional alliance of groups in five Great Lakes states devoted to achieving economies of scale in the reform community that allow groups to do work collectively and regionally that none of them could likely do alone in their respective states. WDC is represented on the network's five-member steering committee. This video tells more of the story. . . .

What is the Midwest Democracy Network? from Midwest Democracy Network on Vimeo.

Fundraising Ban Widely Effective, BUT. . .

A review of campaign finance reports filed so far shows widespread adherence to a rule banning campaign fundraising by members of the Assembly during the state budget process.

However, if the reports accurately reflect when the contributions were received, four Assembly representatives violated the ban in effect during legislative action on the 2009-11 budget. The reports filed as of early Thursday cover fundraising and spending activity in the first six months of 2008 by about one-fourth of the Assembly.

The Assembly ban approved in February called on its 99 members not to accept or solicit any campaign contributions for themselves or other campaign committees beginning the day the budget bill is introduced in the legislature, which was February 17, and ending on the date it is presented to the governor, which was June 29.

Democrats Fred Clark of Baraboo and Ted Zigmunt of Francis Creek accepted $600 and $2,050 in contributions, respectively, on February 17. Republican Rich Zipperer of Pewaukee accepted $450 in contributions February 17 and Republican Keith Ripp of Lodi accepted a $57.80 in-kind contribution June 25.

Democrat Penny Bernard Schaber of Appleton received $3,025 before the ban and a $50 contribution on June 16 which she returned to the contributor.

A report filed by veteran Democrat Robert Turner of Racine shows he raised $11,065 in individual and political action committee contributions from March 24 through April 24. But the ban allowed Assembly members to accept contributions to run for other elected offices. Turner unsuccessfully ran for mayor of Racine in a May 5 special election.

Republican Kevin Petersen of Waupaca made $1,610 in in-kind contributions and a personal loan to his campaign during the ban.

The Democracy Campaign found numerous Assembly members got contributions before the ban took effect, according to their campaign reports. Democrat Mark Radcliffe of Black River Falls accepted $1,880 in contributions February 13 and 14 and Democratic Assembly Speaker Mike Sheridan of Janesville accepted $500 February 2. Republicans Bill Kramer of Waukesha got $500, Robin Vos of Racine got $4,525 and Jim Ott of Mequon and Gary Tauchen of Bonduel each raised $100 - all before the ban.

So far, representatives who reported getting no individual or PAC contributions during the entire six-month period are:

Republican Representatives Dan Meyer of Eagle River, Roger Roth of Appleton, Samantha Kerkman of Genoa City, Richard Spanbauer of Oshkosh, Don Friske of Merrill, Mark Gottlieb of Port Washington and Pat Strachota of West Bend;

Democratic Representatives Jim Soletski of Green Bay, David Cullen of Milwaukee, Marlin Schneider of Wisconsin Rapids, Mary Hubler of Rice Lake, Chuck Benedict of Beloit and Joe Parisi and Spencer Black, both of Madison.

Hard Times For Fat Cats

Is a recession in the political economy right around the corner? Bill Kraus thinks so.

He might end up being right. Bill's a seasoned political veteran who knows the lay of the land in campaigns as well as anyone. If he looks into his crystal ball and sees belt-tightening for the political class, then it at least has to be considered a plausible scenario.

But I wouldn't bet on it.

I say that for two reasons. First, the overall economy was already in recession in 2008 but political giving and campaign spending were up. Way up. Second, if you count up all the donors to state campaigns in the Democracy Campaign's online database, they amount to only about 1% of Wisconsin's population. If the masses were making campaign contributions, then you'd expect political giving to drop off during an economic downturn. But only 1% does all the donating, and it tends to be the upper crust, the least likely to have been seriously impacted by the recession.

For these reasons, it's my guess that the political economy will remain recession-proof.

A Familiar Dodge

The tale of missing travel receipts that was told over the weekend by the Milwaukee Journal Sentinel has a familiar ring to it. What has evidently now become standard operating procedure in at least the upper echelons of the executive branch was once an all-too-common election campaign practice that was exposed and then banned in early 2006.

We started noticing that credit card transactions by campaigns were being reported in a way that made it impossible to determine who was being paid for goods or services rendered. Campaign finance reports would attribute vaguely described expenses to the credit card company and not the vendor who was the actual recipient of the campaign funds. Governor Jim Doyle was among the worst offenders.

The state Elections Board was called upon to prohibit the practice and require meaningful disclosure of how money is really changing hands in campaign business transacted by credit card. In March 2006, the board did just that, adopting a new policy requiring campaigns to disclose the vendor's name and address as well as the date, amount and purpose of any expense over $20.

Doyle evidently didn't take any lesson from that episode because the veil he has been routinely throwing over expenses related to his travel as governor is eerily reminiscent of the one his campaign used to throw over all manner of spending he did while seeking the office in the first place.