Paul Soglin: Waxing America

The Real Problem Caperton v. Massey poses to WMC and the Right Wing Fronts

Some are missing the point when it comes to understanding the implications of Caperton v. Massey. This is the recent United States Supreme Court case where the majority ruled that campaign contributions cannot undermine the impartiality of the courts.

As those who follow our successful WMC Watch program know, we focused not so much on Wisconsin Manufacturers and Commerce inserting itself into judicial races as much as the fact that the public does not know who is paying or who is authorizing the "Willie Horton" style ads that are the characteristic of WMC and its clones.

Writing at Shark and Shepard, Rick Esenberg notes, "WMC rarely has a personal stake in a case and, putting that aside, there were very few cases pending or imminent at the time of the election in which it could be said to have a more general interest."

True, Rick. And very little of the $2-3 million that went into the Ziegler or Gableman judicial races came from WMC, or for that matter its WIsconsin members.

But the money came from somewhere. It came from some big players. For the U.S. Supreme Court decision to have any meaning, there must be disclosure as to the source of the funds. WMC, All Children Matter, Americans for Prosperity, all will have to reveal the funders.

Reflections on the Election

Shirley Abrahamson's re-election to the Wisconsin Supreme Court was rewarding:

• She proved that you do not have to run from your core beliefs to win a state wide election to the court. Neither Louis Butler or Linda Clifford ran from their core beliefs but they both lost.
• Among the WMC, All Children Matter crowd, those who called for a full all-out negative television campaign against Abrahamson and successful Superintendent of Pubic Instruction candidate, Tony Evers, were vindicated. Clearly the anonymous bundled millions of dollars that were used by the issue committees in the fall 2008 and the previous two Supreme Court races in 2007 and 2008 was effective. The absence of these funds in this election was obvious. Expect WMC and its surrogates to come to the next gunfight well armed.
• Look for Randy Koschnick to return for another Supreme Court race. WMC and the Americans for Prosperity left him out on a limb, having encouraged him to run, promising money, and then sitting out the election. They will repay him if Dave Prosser does not seek reelection in 2011 with a full press, state wide effort.
• Shirley Abrahamson  proved that a non-partisan progressive candidate can put together a solid functioning campaign. Credit goes to  Heather Colburn, Rick Phelps, and the rest of the crew that managed and strategized the victory.

I was quite pleased that Bridget Maniaci won the Madison second aldermanic district race over incumbent Brenda Konkel. I was surprised, upon hearing the results, that I felt sad for Brenda in her defeat.

Other thoughts:

• Kathleen Falk, re-elected as Dane County Executive, proved she is mortal. While no longer the Teflon candidate, now measured by normal standards, her victory over Nancy Mistle was convincing and impressive.
• Biggest winner in Madison who was not running: Mayor Dave Cieslewicz. He got victories in the two most critical city council races where he made endorsements.
• Losers who deserve better and we hope to hear more from them: Hamilton Arendsen who lost in Madison's fifth aldermanic district to Shiva Bidar-Sielaff, and Stephen Ehlke, who was defeated by Julie Genovese for Circuit Court Judge, Branch 13. Congratulations to both of the victors.
• Sly, the morning maverick at WTDY AM, 1670, reminded us that in a discussion with Charlie Sykes he suggested that maybe right-wing Milwaukee radio, not Madison, is the 70 square miles surrounded by reality. He may have something there.

WMC And the Manufactured Tort Hell

As reported yesterday on Waxing America, two members of the University of Wisconsin Law School  faculty, Marc Galanter and Susan Steingass, published a report, Civil Justice in Wisconsin: A Fact Book, Commentary.  

To sum up just a few of their relevant findings, Wisconsin does not have an excessive number of tort filings and any increases in civil litigation are either in the area of small claims or businesses suing one another over contract disputes.

There are two astonishing items about the report. First, there is the modest introduction the authors bring to their work:

It is our hope that this account of the facts will not only help citizens to understand the performance of their civil justice system, but it will enable them to assess the validity and seriousness of the criticisms leveled by its detractors and the defenses raised by its proponents. The goal of this understanding is not to provide answers but to dispel illusions about the system in favor of a realistic, if necessarily incomplete, picture of what is actually out there.

The second, and more explosive, is the reaction from Wisconsin Manufactures and Commerce. Keep in mind that WMC beat the drum of tort reform for several years relying on the most bizarre of studies to 'substantiate' their case.

Without time to read the report or consider how his response might reflect on WMC, media director Jim Pugh told Todd Finkelmeyer of The Capital Times, UW report: WMC Claims of excessive litigation in state are bogus,

It should come as a surprise to no one that the UW Law School is trying to say that we don't have enough litigation in Wisconsin," said Pugh. "They have a vested interest in trying to graduate as many future lawyers as they can accommodate. So they have an interest in expressing that point of view."

This from an outfit that based its claims that Wisconsin was in need of 'tort reform' using a poll from the Institute for Legal reform. U.S. Chamber of Commerce Lies About Wisconsin "Tort Reform", Waxing America, April 11, 2006:

Here is all you need to know about the non-partisan, Harris Interactive poll that found Wisconsin in such bad shape:

• Of course the poll is non-partisan.  That is because they did not ask the participants their political party affiliation.
• Yes, it is a poll conducted by Harris Interactive. They will poll anyone on any subject for a price and put their name on it. 
• Harris takes responsibility for the honesty of the polling; they take no responsibility of the use of the poll by their customer in misleading the public.
• The respondents in this non-partisan poll were : a sample of 1,456 in-house general counsel or other senior litigators at companies with annual revenues over $100 million.  Now there is a nice fair, unbiased group of rich,white, males who all represent defendants in tort litigation.  Yes, we are reassured that this is a non-partisan survey but it is certainly not unbiased.  It is fixed, dishonest, and deceptive. Did I say not unbiased?

As we noted April 14, 2008. The real Reason to Buy A Supreme Court

One need go no further than WMC's own surveys of its members to see the irrelevance of tort reform. In its 2006 survey of its members, when asked, "What is the top business concern facing your company?" the  lowest response polled was lawsuit abuse with a measly response of 1.23%.

I'll take the work of two honest scholarly Wisconsin researchers over a survey of 1456 corporate lawyers any day of the week.

Nothing has changed on East Washington Avenue.

Koschnick, candidate, and Oswald, murderer - Schadenfreude

The nightmare for every candidate and public official is the less than six degrees of separation that link them to just about anyone on the planet who can destroy their career.

Wisconsin Supreme Court candidate Randy Koschnick now bears the burden of the support of Ted Oswald, convicted of the 1994 murder of a Waukesha police captain. Cop Killer Endorses Supreme Court Candidate:

In a letter from prison, notorious cop killer Ted Oswald is endorsing Judge Randy Koschnick's candidacy for the Wisconsin Supreme Court.

Koschnick is putting as much distance between himself and the murderer he represented as a public defender, "He is free to say whatever he wants, but his endorsement is no honor to me."

What is most interesting is the position of many law enforcement organizations, some of which endorsed the tormented Koschnick who:

in the past, have successfully argued that the work of public defenders undermines that of law enforcement.

I doubt that this endorsement will have much bearing on the outcome fo the election, but  as they say in Avenue Q, Schadenfreude!

Yup! It's German for "happiness at the misfortune of others!"

Of course, none of this gets us to the role Koschnick played as Oswald's attorney in 1994 and 1995, in advising his convicted client not to cooperate with law enforcement officials who wanted to question the Oswalds about their role in other felonies. Despite Ted Oswald's life sentence with no opportunity for parole, Koshnick advised his client not to answer police officers' questions about other major crimes, including at least one attempted murder.

Abrahamson Watch: Will They or Won't They?

If reports from the Milwaukee Journal Sentinel and The Capital Times are accurate, there will be no concerted right-wing attack on incumbent Chief Justice Shirley Abrahamson as she runs for re-election to the Wisconsin Supreme Court.

The MJS reports Three groups that ran 'issue ads' sitting out this Supreme Court race that the Coalition for America's Families and Wisconsin Club for Growth will join Wisconsin Manufacturers and Commerce on the sidelines in this spring's challenge against Abrahamson from Jefferson County Circuit Judge Randy Koschnick.

...the Journal Sentinel has learned that two other groups that spent millions on pro-Gableman and pro-Ziegler ads -- the Coalition for America's Families and Wisconsin Club for Growth -- also do not plan to repeat those efforts before April 7.

The Capital Times notes, Influential conservative groups say they won't be running ads for Koschnick

The other two major conservative players, Club for Growth Wisconsin and Coalition for America's Families -- which together spent just under $1 million on behalf of Gableman last year -- will also be staying out of the race,

All of which leaves Waxing America looking pretty foolish, since we predicted that if WMC stayed out of the fray, some other organization acting as a surrogate or front, would rush into the issue ad business.

Which leaves us with these thoughts:

• The conservative organizations, content with the purchase of the Ziegler and Gableman seats on the Supreme Court, figure that they have a majority and going after Abrahamson is overkill.
• Recent negative publicity about WMC behavior in 2008 was a deterrent to them and, in part, to the others, to stay out of the campaign.
• While the three mentioned organizations will stay out, there is still room for Americans for Prosperity or a surrogate, freshly organized, to enter the campaign.
• The millions will pour into Wisconsin from national right wing corporations and 'clubs,' but the money will be directed at the Superintendent of Public Instruction race, not the Supreme Court.
• Club for Growth is too busy with its retro 1950's red-baiting Comrade of the Month campaign.
• The Coalition for America's Families is too busy linking to Wisconsin Right to Life.
• Americans for Prosperity is too busy denying the existence of global warming.

All of which takes us back to the central point that these organizations are conduits for million of dollars from out-of-state companies like Home Depot, General Electric, and Wal-mart, who are afraid to put their names on political efforts to shape a Wisconsin that is anti-union, anti-consumer, and anti-environmental, so that they can enter the marketplace unregulated.

Wisconsin Manufacturers and Commerce: Attitude Adjustment. Not

This week's Isthmus says, Wisconsin Manufacturers & Commerce tones it down a notch.

Correctly noting that the tone of this fall's election television advertisements designed to elect Republicans are by WMC's own admission, "reposition(ed)." Erik Gunn reports:

Such ads are a departure for WMC, which is better known for its spots trashing state Supreme Court Justice Louis Butler as "Loophole Louie" or, earlier, portraying Gov. Jim Doyle during his successful 2006 re-election bid in a green, toxic haze to suggest he is a crook.

We recall that it took enormous pressure to get WMC to make these modifications to its political message. They only did so  when the image of the individual members was tarnished by the trash they produced in previous elections.

Left to their own devices, WMC would resume creating more "Willie Horton" style messages.

It is clear that WMC's market position was assumed by such groups as the Coalition for America's Families, the Club for Growth and All Children Matter which continues to produce WMC-style attack ads.

All Children Matter is running nasty spots that have nothing to do with children or the truth.

The Government Accountability Board may or may not get the power to regulate these ads so that the public knows who is paying, but the WMC misinformation machine will continue to roll.

These public advertisements are just one face of the WMC propaganda effort.

When the new session of the legislature opens next year, expect WMC to continue to publish distortion and after distortion about Wisconsin tax levies, expenditures for compensation packages of public employees, and of course, the record of Wisconsin Supreme Court Chief Justice Shirley Abrahamson.

WMC is not going to go quietly into the night.

Fresh Problems At Wisconsin Manufacturers & Commerce

Life at Wisconsin Manufacturers and Commerce (WMC) is beginning to resemble the George Steinbrenner New York Yankees.

Fresh from another win last spring, when they purchased Max Gableman's seat on the Wisconsin Supreme Court, WMC's life, both on and off the field, is filled with uncertainty, recrimination and bitterness.

The problem is simple. Successive victories in Supreme Court races does not translate into control of the other branches of government. In 2006 WMC choose to go after Governor Jim Doyle. While they managed to elect the Attorney General, WMC failed to dislodge the incumbent Governor and simultaneously lost the State Senate to the Democrats.

With the November elections less then three months away, WMC must retain a majority in the Wisconsin Assembly, a daunting task, and attempt to win back control of the Senate, an almost impossible challenge.

To make matters worse, the most potent WMC weapon, massive vicious attack ads on television, which work in state-wide elections, rarely work in legislative races because of the large number of small legislative districts within each large TV market.

Faced with this difficult challenge, WMC is carving out radio markets in an attempt to surgically protect about a dozen Republican Assembly seats. Because it is radio, not TV, these ads will have to be more vicious, even by WMC standards. Some blanket TV ads will also be used, but they run the risk of producing more of a backlash than Republican voters in an election that will be dominated by the presidential election.

The problem is more than a strategic one as to how to purchase the media and run the attack ads.

It is complicated by the fact that Democratic legislators, the victim of the contemplated  media blitz, unlike Supreme Court justices, can mount an offensive and if they win, and subsequently orchestrate a payback. Add to all of this the higher than normal  dissension  in the WMC ranks, and life on E. Washington resembles the Steinbrenner-Billy Martin-Reggie Jackson clubhouse.

Someone may take a hike before this is all over.

Law and Order American Style: Fascist Home Wreckers

Last week's story from Prince George's County, Maryland was not unusual or rare except that the facts in this instance are so clear and unconverted. A police dog found a package at a shipping facility that contained thirty pounds of marijuana. They followed the delivery to the nice middle class home and then conducted a raid.

There was a problem. They knew nothing about the intended recipients of the package. Police raid Md. mayor's home and kill his dogs

Mayor Cheye Calvo got home from work, saw a package addressed to his wife on the front porch and brought it inside, putting it on a table. Suddenly, police with guns drawn kicked in the door and stormed in, shooting to death the couple's two dogs and seizing the unopened package...

...Police say the couple appeared to be innocent victims of a scheme by two men to smuggle millions of dollars worth of marijuana by having it delivered to about a half-dozen unsuspecting recipients.

Before this chaotic event was resolved, the two family dogs were shot,

Calvo insisted the couple's two black Labradors were gentle creatures and said police apparently killed them "for sport," gunning down one of them as it was running away.

and Calvo's mother in law was treated like the victim of a Fascist state:

But officials insisted they acted within the law, saying the operation was compromised when Calvo's mother-in-law saw officers approaching the house and screamed...

...when she was handcuffed and interrogated for several hours.

Nothing surprising here. Nor should you be stunned or shocked by the response of the police department:

Prince George's County Police Chief Melvin High.. defended the way the raid was conducted. He and other officials did not apologize for killing the dogs, saying the officers felt threatened...But officials insisted they acted within the law, saying the operation was compromised when Calvo's mother-in-law saw officers approaching the house and screamed.

Years ago I had a discussion with Madison police officers on city policy regarding searches and intrusions without a warrant. One officer defended departmental policy saying, "Recent U.S. Supreme Court decisions allow us to do it, it is within the law."

He was right, but I responded, "Just because the Supreme Court has lowered the bar, compromised rights to protect citizens from abusive process of law, does not require us to lower our Constitutional standards."

This is the result of the cynical appointments to the United States Supreme Court by Reagan, Bush, and Bush.

The Wisconsin Supreme Court rulings are no different with the court now owned by Wisconsin Manufacturers and Commerce (WMC) The election of Anette Ziegler and Max Gableman ensured a right-wing majority that will do all within its power to limit citizens' protections against illegal search and seizures and unwarranted brutal force.

Years ago I created a Public Safety Review Committee for the city of Madison.  This is exactly the kind of subject they should examine. It would be wise for them to call in police officials and go over the Madison standards in these kind of situations. Nowhere is it written that we have to live by the lowest common denominator whether it is set by Clarence Thomas or Max Gableman.

These folks were white and middle class, and the mayor. Imagine being black and not so middle class, and not the mayor.

Wal-Mart Attacks Democrats. Again.

No less a source than the Wall Street Journal reports that Wal-Mart Stores Inc. is calling in its managers to prepare them for an attack on the Democratic Party and Barack Obama.

Wal-Mart mobilizes against Democrats

Wal-Mart Stores Inc is mobilizing U.S. store managers to lobby against Democrats in November's presidential election, fearing they will make it easier for workers to unionize, The Wall Street Journal reported on Friday

In recent weeks, thousands of Wal-Mart managers and department heads have been summoned to mandatory meetings...

America's retail giant is no stranger to partisan politics or immersing itself in the electoral process. Wal-Mart did not become the powerful retail force of modern America by sitting still while voters selcted moderate or progressive govenors, judges, or legislatures.

The company is one of the largest players in the effort to buy American - as in buying American courts and the American judiciary.

When Wisconsin Manufacturers and Commerce (WMC) spends millions of dollars on Wisconsin judicial elections, it is rumored that a significant portion of that money comes from out of state corporations led by Wal-Mart.

Two Views on The Integrity of the Wisconsin Supreme Court

Sunday the Wisconsin State Journal, troubled by the large amounts of cash Wisconsin Manufacturers and Commerce (WMC) spent to elect two justices and reflecting on the recent state Supreme Court decision in the Menasha tax case, observed, Restore public's trust in court:

This month the state Supreme Court decided a tax case that will result in refunds to Wisconsin businesses of up to nearly $300 million at the state 's expense...

...The problem was not the decision itself, which considered vexing legal questions regarding which kinds of software are exempt from sales tax...

...WMC 's influence in Ziegler 's election and Butler 's defeat and the potential for that influence to affect their decisions prompted Common Cause, a watchdog organization, to argue that both justices should have recused themselves from the case.

Clearly, the seeds of mistrust have been planted...

I am not ready to embrace appointed justices, but I share in the conclusion that pubic trust is shaken.

I observed in a post two weeks ago, without commenting about the substance of the decision, Best Joke of the Week. From WMC, of course.

Wisconsin Manufacturers and Commerce, the state's largest business lobby, spent an estimated $2.2 million on behalf of Ziegler in her successful race for the Supreme Court last year.

In response  to this, conservative resident Wisconsin legal expert and ethicist Rick Esenberg wrote, Who's "swiftboating" the state Supreme Court?

My good friends at One Wisconsin Now weigh in and Paul Soglin does too. But here's the thing: None of them criticize the Court's reasoning...

...Nevertheless, questioning the integrity - as opposed to the the merits of the matter - of the Court is unwarranted.

Rick is correct, I did not get involved in the reasoning of the court. That is where his correctness begins and ends. The real issue is the the way the WMC activity in the Zielger campaign, unheard of in the entire history of Supreme Court elections, raised serious questions about her ability to independently rule in the matter.

The Wisconsin State Journal gets it, most of Wisconsin gets it, but the judicial ethicist does not.