Wisconsin Union Law’s Future May Hinge on High Court Election

Wisconsin voters will elect a Supreme Court justice today in a race that has become a proxy for the battle over Republican Governor Scott Walker’s law curbing collective bargaining for public unions.

Groups inside and outside the state are pouring money into the nonpartisan contest between Justice David T. Prosser Jr. and challenger JoAnne Kloppenburg, an assistant state attorney general. The outcome may shift the court’s ideological balance and determine how a legal challenge to the Wisconsin law is decided, said Mordecai Lee, who teaches government at the University of Wisconsin-Milwaukee.

“This is not merely a symbolic referendum on public opinion about the collective-bargaining bill; it is substantively about the collective-bargaining bill,” Lee, a state lawmaker from 1976 to 1990, said by telephone yesterday. “This is the swing seat on the Wisconsin Supreme Court that will probably eventually decide the issue.”

The election will send a strong message, said Charles Franklin, a University of Wisconsin-Madison politics professor.

“The stakes are high,” he said.

If Kloppenburg wins, it will show Republicans may pay a price for backing Walker’s initiatives, Franklin said. A Prosser victory will indicate that the storm of opposition by Democrats and unions to the law Walker championed won’t be enough to topple fellow Republicans, he said.

Furious Reaction

The Wisconsin law that passed last month with no votes from Democrats limits most government unions to bargaining for wages alone; raises can’t exceed inflation unless voters agree. The measure requires increased contributions for health-care coverage and pensions, and prohibits automatic dues collection from workers’ pay. Debates about government workers’ bargaining power and benefits also are unfolding in states including Ohio, New Jersey and Indiana.

The district attorney of Dane County, which encompasses the capital of Madison, sued to block the Wisconsin law, saying that legislators violated the state’s open-meetings statutes in passing the measure

Kloppenburg has “said she’s giving a wink and a nod on how she will vote on the repair bill,” Mike Gousha, distinguished fellow in law and public policy at Marquette University Law School, said in a telephone interview. “She has hit him with the partisan charge and he’s fired back, calling her everything from an environmental extremist to an unbending ideologue.”

Career Litigator

Kloppenburg, 57, has been a litigator in the state Justice Department since 1989, serving under attorneys general from both parties, according to her campaign website. She gave a total of $1,025 to seven candidates and the Assembly Democratic Campaign Committee between 2002 and 2010, according to the Wisconsin Democracy Campaign, a nonpartisan watchdog group. Six candidates were Democrats, while the seventh race was nonpartisan.

Prosser, 68, served as a Republican for 18 years in the state Legislature and on his campaign website says, “I present myself as a judicial conservative, devoted to the constitution and the rule of law.”

Kloppenburg would be an independent jurist, said Melissa Mulliken, her campaign manager. Mulliken questioned Prosser’s impartiality, pointing to a Dec. 8 statement from his campaign that said his election would be “a common-sense complement to the new administration and Legislature.”

The race shouldn’t be a referendum on Walker’s agenda, said Brian Nemoir, his campaign manager. It should be on keeping the conservative judicial majority that Prosser represents, he said. Nemoir called it “a classic battle between those who want a liberal, activist court and those who desire a conservative court.”

Primary Results

Prosser won 55 percent of the vote in the nonpartisan primary Feb. 15, while Kloppenburg was second with 25 percent, according to the Wisconsin Government Accountability Board.

Since Walker introduced his “budget-repair” bill in February and the lawmakers passed it March 10, more than a dozen groups buying television and radio advertisements and other campaigning and have made the race a “dogfight,” said Mike McCabe, executive director of the Wisconsin Democracy Campaign.

Both Prosser and Kloppenburg accepted public financing from the state of $100,000 each for the primary and $300,000 each for the general election, meaning they can no longer take private donations, McCabe said.

Millions Spent

Independent groups have spent more than $3 million combined on television ads through April 3, including $2.6 million for the general election, according to an analysis released yesterday by the Brennan Center for Justice at New York University’s law school.

That includes $1.2 million from the Greater Wisconsin Committee supporting Kloppenburg, plus about $1.8 million from the Wisconsin Club for Growth, Citizens for a Strong America and two other groups backing Prosser, the Brennan Center said. Independent spending for the 2009 Wisconsin Supreme Court race reached almost $306,000, according to the center.

“Interest in the race has soared as liberal-leaning organizations have attacked Prosser as a ‘rubber stamp’ for Walker, and business groups have warned that a Kloppenburg victory could endanger Walker’s legislative accomplishments if and when the Supreme Court rules on challenges to the legislation,” the Brennan Center said.

The outcome of the race also could affect efforts to recall state senators stemming from the fight over the union bill, UW- Madison’s Franklin said. Committees have been formed in the districts of eight Democrats and eight Republicans eligible for a recall this year, said Michael Haas, a lawyer with the Wisconsin Government Accountability Board.

Recall Petitions

Petition forms have been filed in one district to seek the recall of Republican Senator Dan Kapanke of La Crosse, Haas said by telephone. The committee presented about 21,700 signatures and needs 15,588 to be certified to force a recall election. That’s about a quarter of the number of votes cast for governor in November, he said.

The race between Prosser and Kloppenburg is “a proxy against their will,” UW-Milwaukee’s Lee said. “The campaigns have been kidnapped by these larger issues and larger forces. Whether they like it or not, the two candidates are left in the passive role of watching the campaign that they are barely participants in.”

To contact the reporters on this story: Mark Niquette in Columbus, Ohio, at mniquette@bloomberg.net; Marie Rohde in Milwaukee at fmarierohde@gmail.com.

To contact the editor responsible for this story: Mark Tannenbaum at mtannen@bloomberg.net

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