by Standerinfamilycourt

The wicked accept bribes in secret [well…obscurity, anyway]
    to pervert the course of justice.     –  Proverbs 17:23

A bribe is a charm in the sight of its owner;
            Wherever he turns, he prospers.   – Proverbs 17:8

And you shall take no bribe, for a bribe blinds the clear-sighted and subverts the cause of those who are in the right.    –  Exodus 23:8

“standerinfamilycourt”  moved a couple of years ago, compelled by financial circumstances imposed by a “family law” court, to the neighboring state, where the cost of living is considerably less than the state of our now-sold marital residence.    This state has a news organization that believes in sponsoring and televising political debates between judicial candidates, in this case, for a 10-year re-electable seat on the Wisconsin Supreme Court.   The politically-correct line about this office is that it is “non-partisan”.   However, one did not need to watch much of this debate to quickly identify the “liberal” and the “conservative” candidates, as it were.    The sad fact of our crumbling democracy and society is that many judicial decisions are made ideologically, regardless of the traditional lore, rhetoric and precedents to the contrary.

It also appears that in the last few years, the decisions are moving in the direction of becoming more ideological rather than less ideological.    According to the public interest organization, Justice At Stake, from 2000-2009, fundraising by state Supreme Court candidates soared to $206.9 million, more than doubling the $83.3 million raised in the 1990s.   Note that this measurement period ended just before SCOTUS handed down the landmark big money decision,  Citizens United v FEC, which is discussed below.   While this blog post is a fairly detailed discussion of the skunkworks in one  particular state, it is likely that any of the 20+ states with elected judges and justices will have the same special interest obstructions to true constitutional justice for the average citizen, to the extent that the remedy sought would conflict with the special interests of the donor class inside and outside that state.

Being a firm believer (from hard experience) that these days, there cannot possibly be “too much” light shed on the judiciary and on the dubious process of electing its “public servants”, this voting citizen dutifully watched the entire hour of debate very attentively, and was quite grateful, if woefully disheartened, at the rare opportunity to do so.   The dominant issue in this debate was, who all was buying the most influence, and from whom.     Some may “take issue” with the notion of a political donation being compared with a bribe, and in fact, many donations do not function as bribes.   The problem is with the concentration of those that are clearly so, in this climate of the past few years, where most of the integrity of the judiciary has been steadily evaporating to the point where most key decisions, especially those touching the Sexual Revolution are indeed ideological.     We in the marriage permanence community need to also keep ever-mindful that some of the most key decisions are hidden, and not even required to be published or justified with a stated reason:   quite notably, whether or not to even hear an appeals case brought before the highest court in the state.    

There have been calls for SCOTUS  Justices to have their life appointments curtailed, and even for them to be elected rather than appointed, especially in the wake of corrosive and overbearing decisions like Roe v. Wade,   Lawrence v Texas, Citizens United v FEC,  Employment Board v. Smith,  and Obergefell v Hodges.   which legalized all of the following by high court ideological fiat:

– abortion
– sodomy
– money as “speech”
– countermanding the 1st Amendment fundamental protection of free religious exercise on the state and Federal levels, leading to the need for individual states to adopt RFRA’s, which directly resulted in state-by-state inequality of that Bill of Rights protection
– gay “marriage”

As frustrating as these ideological travesties of justice were (some of the very worst of them conservatively-decided, by the way), a better solution needs to be found that does not hamstring or sabotage the separation-of-powers our founders so wisely designed-in.    My theory is that elected judicial candidates provide no advantage over appointed candidates, and may have effectively placed the latter for purchase by the highest bidder, especially in the wake of Citizens United, which declared inanimate greenbacks to be 1st Amendment-protected “free speech”.    That’s right, since 2010 the “green stamps” in the corporate and PAC wallets have been deemed more worthy of 1st Amendment protections by the highest court in the land than human Respondents in a unilateral divorce lawsuit (since SCOTUS has a long history of refusing to hear constitutional challenges of unilateral divorce laws in the decades since their state-by-state enactment).

As noted earlier by the organization Justice At Stake, most states which have an elected, term-limited judiciary created this special-interest situation long before 2010, and to be transparent, the big donors to these elective offices didn’t have many limits that the Citizens case materially changed (at least in Wisconsin), as we shall see in the process of breaking down the donor-categories and amounts given to these two competing “non-partisan” candidates in the state of Wisconsin.   As responsible citizens, however, we still need to be aware of the increasing potential for big money from in-state and out-of-state special interests to literally purchase a state judicial election, since the door has now swung wide open for them to do so:

The United States Supreme Court held (5–4) on January 21, 2010 that the free speech clause of the First Amendment to the Constitution prohibits the government from restricting independent expenditures for communications by nonprofit corporations, for-profit corporations, labor unions, and other associations.  –  Wikipedia

As recently reported by Matthew Rothschild -Wisconsin Democracy Campaign Executive Director,

“Before  [2015 legislative change], the most a candidate for the state supreme court could receive from all committees combined was $140,156. So the candidate could accept $140,156 from the Republican Party of Wisconsin, but then the candidate could not accept a single dime from any other committee.

“Now the sky is the limit. Political parties can now give unlimited amounts of money to candidates of their choice.

“To make matters worse, before the 2015 rewrite, the most that a rich individual could give to a political party was $10,000. Now a rich individual can give unlimited amounts of money to a political party.

“With both of these ceilings torn down, a billionaire could give $10 million to a political party, and that party could then turn around and spend that $10 million on the billionaire’s favorite candidate for the Wisconsin Supreme Court.

“This makes a mockery of the limits on direct donations to candidates for Wisconsin Supreme Court, which used to be $10,000 and now is $20,000 (itself a ridiculously high sum).”

So, whose bidding will the two opposing candidates be doing, once elected?     For those who didn’t take time to watch the debate video linked above, here’s a brief synopsis (financial figures are from the site Wisconsin Democratic Campaign, a follow-the-money disclosure site, as reported through March 11, 2018):

“Non-partisan” Progressive –  Rebecca Dallet*  (please click to enlarge detail)

*Note:  Dallet donated $200,000 to her own campaign, $35,000 more than her opponent’s entire fundraising result, to-date.   These funds have been excluded from the analysis for a fairer comparison of supporters.     Even so, her overall donated funds are more than twice her opponent’s.   Close to $200,000 alone has come from the practicing or retired legal community, easily 50% of her outside fundraising, with the biggest firm donors in the personal injury, energy or corporate practice areas.    Her other major special interest donor categories include commercial business interests in Real Estate, Banking and Non-Profits. All of the donations for Dallet in the “Political / Ideological” category were $500 or under, except for the Brico Fund – $5,000, which appears to be a feminist organization focused on girls, and more recently, environmental and “social justice” issues (excluding, of course, Bill of Rights protections of unilateral divorce Respondents and the right-to-life of pre-born citizens).

PAC contributions to or expended on behalf of Dallet appear to be immaterial, but tellingly there’s one special interest group who is spending significant money in her behalf based on a perceived need for her support:

Note:  the first group listed has expended 40% more in favor of her opponent’s campaign.   The second group has expended $116K and is the subject of heated controversy in the state, justifiably so.

Overall, about $32K or about  9% of Dallet’s fundraising came from out-of-state sources.    Note: On April 3, 2018, Dallet did emerge as the successful candidate in the General Election.

“Non-partisan” Conservative –  Michael Screnock (please click to enlarge detail)

Between 30 and 40% of Screnock’s coffers have been filled with donations from the active or retired legal community, but this is not as easy to gauge because Dallet’s retired donors were listed as such, example: “retired judge“, whereas Screnock’s retirees and public servant donors were not.    His largest direct campaign donor was his father, who is a currently-practicing family law attorney in Wisconsin, contributing just under the $20K current legal limit established in 2015 by the legislature.    A corporate law firm contributed another $15K.

Unlike the case with his liberal opponent, G.O.P. PAC contributions were significant and helped make “non-partisan” Screnock’s primary campaign financially competitive with Dallet’s mega-war chest.    About $5K or about 3.5% of Screnock’s fundraising came from out-of-state sources, compared with Dallet’s 9%.

The current controversy involving SCOWI (and specifically, candidate Dallet) is over the toothless Justice recusal policy, given the large campaign donations by a PAC interested in the state redistricting / gerrymandering activities.     As it stands, there is nothing except honor or integrity to compel a Justice to recuse themselves from a matter directly involving a campaign donor entity, even right after they have made a very large contribution.    What if a serious challenge to the constitutionality of the state’s unilateral divorce law came before SCOWI, and some of the Justices had taken campaign donations from the American Bar Association?  Or from the ACLU, or the Lambda Foundation?    Wisconsin reportedly has the weakest recusal policy in the country, so this begs the question of why?    If Justices recused themselves, as integrity truly demands, from cases involving the interests of large donors, would those campaign finance contributions continue to flow?   One good way to find out is to reform the recusal rules.

 

Have we structurally landed in a place where only certain citizens are entitled to constitutional fundamental protections, regardless of the liberal or conservative makeup of the court, specifically, those who don’t oppose the fee-rich business-as-usual operation of the Sexual Revolution?

So, how much impact has the Citizens United decision actually had on judicial campaign funding in Wisconsin?    Is there a reasonable way to measure?     For example, can we get an idea by comparing the reported campaign finances of Justices first elected before 2010, and re-elected in 2010 or after?

For each of the three sitting Justices first elected prior to 2010, then re-elected after 2010, an analysis similar to those presented above on the candidates was done, but contrasting the earlier election funding and donors with the most recent funding and donors.    This is also contrasted with the funding and donations for the 2009 last campaign of the only Justice who hasn’t stood for re-election since 2010 because her term isn’t up until next year.    A summary of observations and trends is given based on the individual analysis, for each Justice examined.    In all cases, the Justice’s personal funds donated to the campaign was removed and disregarded in the overall figures so that only external fundraising in considered in the analysis.   Those self-contributed figures also tell an important story, but need to be examined separately.

Chief Justice Patience Drake Roggensack*, 2003/2013
(Conservative)
Summary:  2013 fundraising was nearly six-fold versus 2003, or $688,000 versus $119,000.  In 2013, just under $38,000 (under 2%) was raised from out-of-state sources, and did include business interests, compared with a little over $16,000 (13%) in 2003.  Law firms and lobbyists (yes, I did indeed just say, lobbyists) accounted for 25% of fundraising in 2003, which was similar proportionally to 2013.  The next largest 2003 donor category was Manufacturing at 17% but reduced in 2013 to only 8% of the total figures.  After that, Banking, General Business, Construction, and Health Professionals each accounted for 10%-12% of fundraising in 2003 – and each of these reduced their share by roughly half of the 2003 totals (proportionally) in 2013 while actually donating 3 or 4 times as much in 2013 as in 2003.   Donors categorized as Political / Ideological interests, primarily “school choice”, donated 13% of the total in 2003 versus only 3% of the total in 2013.  Aside from the six-fold rise in campaign costs and fundraising, the other big trend in the post-Citizens United election was the dramatic increase, from 6% to 13%, in donations from the Retired/Homemakers / Non-Income Earners, only $6,000 in 2003 but $91,000 in 2013.  In other judicial campaigns in the state, this group tends to be dominated by retired attorneys and their wives.  The final observation is the emergence of eight new industries donating to the 2013 campaign that were not present in the 2003 campaign, none of which accounted for more than 3% each, including Agriculture, Defense, Education, Insurance, Institutional Health, Natural Resources, Real Estate, and Transportation.
Finally, it should be noted that Justice Roggensack was the first Chief Justice selected by her peers on the court following a law change (2015) that allowed it, instead of the role falling to the most senior justice, prior to that year. Roggensack’s last re-election fell two years prior to her selection as Chief Justice.   In perspective, her 2013 war chest almost twice that of first-time successful 2018 candidate Rebecca Dallet, and was more than four times greater than the unsuccessful 2018 candidate.  Both women donated about $200,000 to their own most recent campaigns.

Justice Ann Walsh Bradley* 1985 / 2015
(Liberal)
Summary:   Again, we see a $600,000+ campaign for 2015, versus only a $29,000 campaign in 2005.   Bradley donated none of her own funds to her 2015 campaign and only $500 to the earlier campaign.   Out-of-state funds, mostly from retired attorneys and spouses amounted to $12,000 in 2015 and none in 2005.    As was the case with the liberal 2018 candidate, Rebecca Dallet, law firms and retired attorneys made up approximately 50% of total outside donations in both the early and the more recent campaign.    As we also saw with the 2013 Roggensack campaign, several industries significantly ramped up their contributions, as did the labor unions and other liberal political causes in 2015.    Contributions by law firms seem to be escalating as an indirect effect of Citizens United in an effort to proportionally maintain their accustomed pre-2010 level of influence, with all the new special interests entering the campaign funding arena.

Justice Annette Kingsland Ziegler*  2007/2017
(Conservative)

Annette Zeigler’s initial SCOWI campaign costs apparently topped $1 million way back in 2007, and she contributed $840,000 to her own war chest, while raising over $500,000 from external donors.   Since she only raised $360,000 for the 2017 reprise, without having to contribute any further personal funds, it appears she was able to carry quite a surplus over from the prior campaign.    Still, her 2007 initial campaign was far more expensive than any of her peers to that point, and more expensive than any since.    Unlike most of her judicial peers, practicing attorney firms did not dominate her fundraising (just 8% and 9%, respectively), but there’s a strong likelihood that the retired, out-of-state legal community made up for it, and may have brought the legal community’s stake to something more like 25% or more in both campaigns.

The other Justice (Rebecca) Bradley was first elected in 2016 on a $900,000 campaign of which (rather oddly) nearly $200,000 was raised from retired and non-income-earning citizens, and Justice Kelly was appointed to fill an unexpired term, so their campaigns were not studied.    Dallet replaces a conservative retiring Justice Michael Gableman, elected in 2008, whose campaign was not studied, since Abrahamson’s 2009 campaign serves as the pre-Citizens United comparator.    Overall, his 2008 campaign ran slightly more than $300,000 of which only about 15% was funded by lawyers and lobbyists.   He contributed less than $1,600 to his own campaign, mostly in petty cash items of odd amounts.

Justice Shirley S. Abrahamson**, 1979/2009
(Liberal)
On the heels of  Annette Ziegler’s  $1 million + run in 2007, former Chief Justice Abrahamson raised nearly $1.3 million for her third (and by far, most expensive) re-election campaign in 2009, the year before the Citizens United decision was handed down by SCOTUS.    Of this, Justice Abrahamson contributed nearly $100,000 of her own funds that year.   Out of State contributions amounted to about $35,000, from mostly businesses and political interests. The term for this successful run expires next year, 2019.    This data indicates that rather than Citizens United being the cause of the ramp-up in special interest funding of judicial campaigns, this democracy-toxic SCOTUS decision may have, in part at least, been actually driven by these conditions.

(please click to enlarge details)

From this, we clearly see that the trend toward domination by law firms (and legal industry retirees) of the overall campaign funding had its explosion prior to Citizens United, especially for “progressive” candidates.    Could it have been that the landmark SCOTUS decision was a reactionary move on the part of the conservative Justices to this trend in Wisconsin and other major states?    There was an abundance of twists, turns, reassignments and re-arguments in this case, including (or possibly accommodating) a very controversial reversal of process by the conservative majority to broaden the scope of their ruling from the narrow question originally brought before them, and profuse, circular, contorted reasoning to justify doing so in the final Kennedy majority opinion, which could hardly be in reference to anything but the impact on judicial elections and the separation of powers overall.

There is certainly plenty of evidence in Justice Stephens’ dissenting opinion that the impact on judicial elections was indeed debated among the Justices:

“ And it underscores that the consequences of today’s holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, see, e.g., O’Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p. A25; Brief for Justice at Stake et al. as Amici Curiae 2, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps “ Caperton motions” will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integrity of their judicial systems. …”

Quoting former SCOTUS Justice Sandra Day O’Connor’s 2010 unofficial commentary (she left the court in 2006),

“[After Citizens United], we can anticipate labor unions’ trial lawyers might have the means to win one kind of an election, and that a tobacco company or other corporation might win in another election. If both sides open up their spending, mutually assured destruction is probably the most likely outcome. It would end both judicial impartiality and public perception of impartiality.”

Stepping back for a look at the “big picture”, it almost goes without saying that if massive special interest donations deliberately and intentionally (according to the SCOTUS majority) drive judicial elections, particularly dominated (as it apparently stands) from the practicing and retired legal community, calling these judgeships “nonpartisan” is a sham that borders on insulting the intelligence of the citizenry.    Indeed, “standerinfamilycourt” is a very new resident of Wisconsin, yet was able to reliably tell whether each candidate was conservative or liberal just by looking at the donor list.   Furthermore, the  “donor class” forking over the big money didn’t exactly get where they are today by personal oblivion and recklessness with their money.   If they didn’t firmly believe, despite the rhetoric and propaganda, that all judges and justices these days “legislate from the bench”,  and (even worse) uphold constitutionally-offensive legislation regardless of the merits of the case before them, they would keep their wallets and purses firmly zipped.   Even more telling is the staggering amount of money successful individual judicial candidates contributed to their own campaigns, particularly re-election campaigns, sometimes amounting to almost three times the amount that their entire first campaign took in from all contributors.  Who would do this if they didn’t realistically expect a serious financial return on those funds over the course of their 10 year term?

Indeed, the separation-of-powers damage left in Wisconsin in the wake of Citizens United is further exacerbated because SCOWI has installed some of the most toothless recusal rules in the entire country — and the majority on that bench has the final say, despite two enacted statutes intending otherwise.    A group of retired judges brought a petition in 2017 for reform of the recusal rules.  Emboldened by the constitutional hijacking in the Citizens United case, conservatives who control the Wisconsin court said the proposal would “interfere with the free speech rights” of those who run ads and engage in other campaign-like activity.

“I believe as a matter of law it cannot stand constitutional or structural scrutiny,” Justice Annette Ziegler said of the proposed rule. ,

“The petitioners here have asked us to do something that does not comport with the constitution as I view it.”     As she views it: that is, through the fouled lens of her nearly $1 million 2007 investment in her own career, upon which it “isn’t constitutional” to deny her the maximum pecuniary returns that the market will bear.  But Ziegler here goes a step further than even Anthony Kennedy, since the issue she so glibly applied Citizens United to is recusal: in so doing, is she not intrinsically saying that not only must the political bribes be protected as “speech”,  but the eventual effectiveness of the quid-pro-quo (from her contributors) must also be guaranteed through her own actual speech?   Is it rocket science to predict what would happen to the level of those donations if their degree of illicit influence was diluted?  It is against this kind of backdrop that the arrogance of the court is unmistakable in the further comment by the conservative majority that the petition for reform was “disrespectful” of the foxes guarding the henhouse.

 

Solutions, Anyone?

As we’ve seen,  there is no longer any such thing as a “non-partisan” judicial election (if there ever was), just as there is no such thing as a “no-fault” divorce.    Both are political myths that the public swallows without much insight — until they and their family personally get burned.    Those states who have such systems, or have partisan elections, including Alabama, Arkansas, Georgia, Idaho, Illinois, Kentucky, Louisiana, Michigan, Minnesota, Montana, Nevada, New Mexico, North Carolina, Ohio, Oregon, Texas and Washington, have effectively waived the separation-of-powers check and balance, until they take action to adjust to Citizens United, and to any additional damage their legislatures may have done in response under the “guidance” that “money is speech”.      Twenty four states were reported as of 2016 to have an appointment system for selecting judges and justices and / or retention elections.   California, New York and Utah are among these.

Justices should be appointed, according to Justice At Stake, at least at the top level, making it likely this would require some states to amend their constitutions.   The fact that lower appellate court judges (who are required to hear all appeals), currently know that big money is going to dictate who’s on the state’s highest court, and it inevitably reduces their independence and objectivity as they would normally seek to avoid having their decisions overturned can now predict ahead of time where they will not be overturned, just by who campaign donors were.   Ditto for trial judges further down the chain.

The policy think-tank, the Brennan Center contended in a 2010 white paper that the most effective national remedy for self-dealing, in a “money is speech” world, is public funding of judicial elections.  Wisconsin seems to be a classic case study in why this recommendation actually resolved very little.   That very year, Wisconsin enacted legislation doing just that.    A 2011 paper by The Brennan Center extols the reduction in such contributions afforded by the availability of public funds that resulted from the reform, which provided $400,000 to candidates voluntarily availing themselves of those funds, touting the 2010 contest between incumbent Justice Prosser and challenger Judge JoAnne Kloppenburg.   We’ve seen with several examples where actual partisan contributions in the seven-figure range in Wisconsin dwarfed that amount long before enactment of public financing.    After enactment, the availability of these modest public funds indeed reduced partisan donations from the typical seven figures to  the high six figures in most races that followed.    It seems a bit more of a stretch to argue that this modest result changed too much, in the scheme of things.  Citizens United, after all, guaranteed that the two systems must now coexist, and independent direct media spend by special interest groups favoring a candidate outside of campaign contributions can easily dwarf both categories.

Wisconsin media liberals have a different “fix” to tout, namely a sixteen year term with a one-term limit.    “standerinfamilycourt” fails to see where this proposal addresses any of the underlying evils that result from the current scheme.    Although sixteen years might reasonably occupy one half to one third of a jurist’s remaining career, will it improve his or her independence in a world where, even without re-election pressures, half of the funds that won the seat came from fellows in the legal profession?    Unlikely.

Judicial corruption amounting to the breakdown of constitutional separation-of-powers impacts the integrity of the biblical family more severely by far, and with far more lasting national consequence, than arguably any other area of life or commerce.    Unilateral family-shredding for profit is a sadly bi-partisan affair, since legal practitioners on both sides of the political aisle profit handsomely therefrom.    Law firms dominate the election funding process only  to a slightly greater degree for leftist jurists than for “conservative” jurists, and one does not need to favor a traditional family structure to still be deemed a “conservative”.    Finally, unlike virtually every other kind of constitutional violation under the sun, no-fault marriage “dissolution” cases are effectively cordoned off from recourse to the Federal courts unless there are homosexuals involved.

Given that the checks and balances in our constitutional republic functioned fairly well for the 200 years before the moral breakdown of society rendered it substantially less able to raise unselfish citizens who are motivated by the long term public interest, national repentance before God, and according to His standards, is likely to be a necessary part of reforms that will ultimately succeed.    When a nation persistently thumbs its nose at His commandments, He simply removes His hand of protection, and after many opportunities to repent, He finally gives them over to their own self-destructive ways.

The elders are gone from the city gate;
    the young men have stopped their music.
Joy is gone from our hearts;
    our dancing has turned to mourning.
The crown has fallen from our head.
    Woe to us, for we have sinned!
– Lamentations 5:14-16

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