Advertisement That's the question that lingers after Tuesday's election, which has been decried nationally for its nasty and undignified tenor, including one ad that showed the grainy photo of a sitting Wisconsin Supreme Court justice side-by-side with a child molester and another that portrayed his challenger as a bobble-head doll.
Conservative and liberal third-party groups and the winner, Judge Michael Gableman, aired millions of dollars worth of TV commercials that have been described variously as false, misleading, unfair and "race-baiting. "
Justice Louis Butler, who was seeking to keep the seat he was appointed to in 2004 by Democratic Gov. Jim Doyle, said in a final television debate that he would not compromise his principles by running a negative campaign. Four days later, the court's first black justice lost to Gableman, the Burnett County Circuit Court judge, 49 percent to 51 percent.
"I couldn't be more proud of the campaign I have run," Butler said in his concession speech from his hometown of Milwaukee. "It was a positive campaign, one that befits the dignity of the Wisconsin Supreme Court."
Rules shot down
But experts in judicial ethics and free speech say the rules that once kept judicial campaign rhetoric on a higher plane have been shot down in recent years by federal and state court decisions, including a 2002 U.S. Supreme Court ruling that struck down portions of Minnesota's judicial-ethics code.
The courts also have upheld the right of groups, such as Wisconsin Manufacturers & Commerce and the Greater Wisconsin Committee, to run so-called issue ads without disclosing who pays for them.
James Alexander, executive director of the Wisconsin Judicial Commission, said his agency has little power to act against speech in judicial campaigns that some may find offensive. The portions of the Code of Judicial Conduct that exhort Wisconsin judicial candidates not to show bias or prejudice, to engage only in fair play and to conduct themselves with dignity are, in the light of recent court decisions, unenforceable, he said.
"We would like to see campaigns that uphold the dignity and integrity of the court system," Alexander said. "(But) it (judicial commission) is not in a position where we could stop this or clean it up -- as much as we'd like to."
'Stark difference'
Alexander said the commission's powers have been "whittled down " to investigating complaints against judicial candidates who appear to promise to rule a certain way if elected and those who make statements they know or should have known are false.
Citizen Action of Wisconsin has filed such a complaint, alleging Gableman aired a TV commercial that falsely implied Butler had a role in the release of a convicted child molester, who then raped another child. The defendant in that case was released after he had served his sentence, and nothing Butler did as the man's appeals attorney 24 years ago hastened his release.
Gableman has defended the ad, saying it fairly highlighted the "stark difference" between his background as a prosecutor and Butler's former career as a criminal defense attorney. A self-described conservative, Gableman insists he ran an issue-based race and that it was liberal groups that lowered the tenor.
"Judge Gableman would have preferred to have a more civil tone instead of the smear campaign conducted by the Greater Wisconsin Committee and other (third-party groups)," Gableman spokesman Darrin Schmitz said. "It's absurd to try to rewrite history in the aftermath of the election and pretend that Judge Gableman did not face millions of dollars in attack ads that failed the truth test."
Free-flowing debate
Mike Wittenwyler, for one, doesn't think the mud-slinging is all bad. The Madison lawyer represents groups that run issue ads and make independent expenditures in political races. He said the debate among candidates and interest groups should be free flowing.
"If you're going to have them (judges) elected, then you have to let them act like candidates," Wittenwyler said. "The (U.S.) Supreme Court has essentially said that ... they (candidates) have to be able to speak freely, otherwise they're campaigning with one hand behind their back."
As for the outside groups, they, too, have the right to engage in nearly unfettered debate, Wittenwyler said.
"These (candidates) are public figures, and they're open to fair comment," he said. "There's very little anyone can do, unless you're willing to set the First Amendment aside ... to legislate that speech only be positive."
Jim Pugh, spokesman for Wisconsin Manufacturers & Commerce, which backed Gableman, said his group's advertising -- which called Butler "Loophole Louie " and accused him of favoring criminals over police -- helped to inform voters. "People had a lot of information, and they made the right decision," Pugh said.
'Drowned out'
UW-Madison political science professor Charles Franklin said that even if both candidates had stuck only to positive messages about their backgrounds and philosophies, they likely would have been "drowned out by the negative ads on both sides." He predicted the trend toward bitter judicial contests will continue.
"The tenor is likely to be extremely negative, so long as we have these third party groups dominating the debate," Franklin said.
Jesse Rutledge, deputy executive director of Justice at Stake, a Washington, D.C., group that advocates for an independent judiciary, agreed.
"To a certain extent, they (judges) are spitting into the wind if they try to run a traditional campaign in the face of millions of dollars spent on behalf of them and their opponents," he said.
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