Supreme Court Race Could Be Most Expensive in U.S. History

Get ready for an onslaught of campaign spending, nasty repetitive ads and misleading claims. The April race for an open seat on the Wisconsin Supreme Court, experts predict, will be the most expensive such race, not just in Wisconsin, but probably in U.S. history.

“The previous record for a judicial race in the nation was for $15 million,” said Ben Wikler, chairman of the Democratic Party of Wisconsin, referencing the 2004 campaign for the Illinois Supreme Court, which the Brennan Center for Justice estimated was the most expensive judicial election. “This is likely to cost much more, tens of millions of dollars,” he told Urban Milwaukee.

“I predict total spending will exceed $50 million,” said former Democratic legislator and UW-Milwaukee Professor Emeritus Mordecai Lee. “I’d expect the attack ads to be as vitriolic, or worse, than the Johnson-Barnes race. It’s going to be cringe worthy.”

If that estimate seems high, consider that the U.S. Senate race between incumbent Republican Ron Johnson and Democratic challenger Mandela Barnes attracted $125 million in outside group spending. Yes, control of the U.S. Senate was at stake, but there were many other races in the nation to spend on in November, whereas no race this spring is as crucial as Wisconsin’s high court election.

“We’re going to be awash in outside money,” said Matthew Rothschild, executive director of the Wisconsin Democracy Campaign, which tracks campaign spending. “Republican donors like Diane Hendricks, Richard and Elizabeth Uihlein, and Wisconsin Manufacturers and Commerce are likely to go all in, and on the liberal side, A Better Wisconsin Together and the Democratic Party of Wisconsin will be raising and spending tons of cash.”

The Uihlein’s Super PAC, Wikler noted, has already said it will spend millions to elect conservative candidate Dan Kelly. The Uihlein’s have been among the top GOP donors in the nation, but Wikler expects there will many other conservative donors from outside the state spending on the race. He told the New York Times he hopes to make the race a national cause célèbre for liberals along the lines of the referendum on abortion rights in Kansas last year.

And he is make progress toward that goal, Wikler tells Urban Milwaukee. “In conversation after conversation I’ve had [with potential donors], it goes from ‘you mean there is an election this soon?’ to ‘oh my goodness, this race is for all or nothing.’”

Wisconsin’s elections for the high court were once far less expensive, partisan and nasty. In the 2003 race between Ed Brunner and Pat Roggensack, outside groups spent just $27,200, as Rothschild has written. But efforts by national business groups to elect more conservative candidates began to jack up the cost of elections, led in this state by the Wisconsin Manufacturers and Commerce, which alone spent $2.2 million in 2007 to elect Annette Ziegler, in a race where total outside spending hit $3.1 million. By 2008 the high court race attracted $4.8 million in outside spending, and in 2020 it surpassed $5 million. That record is likely to be obliterated if current predictions are correct.

The race will decide who succeeds retiring conservative Justice Roggensack and could mean the court either continues to have a 4-3 conservative majority or flips to a 4-3 liberal majority. And that majority could decide issues like abortion rights, a change in redistricting to end gerrymandering, election rules that make it harder or easier to vote and the so-called lame duck laws that created new restrictions on the governor and attorney general after Republicans lost these positions in 2018.

Kelda Roys, a Democratic state senator, predicted the liberal ads will be all about abortion rights. “It’s going to be abortion, morning, noon and night,” she told the Times. Conservative ads are likely to hammer the liberal candidate with soft-on-crime attacks.

There will also be surprise ads based on opposition research that are even now being worked on. That may include ads by the anti-Trump Liberty Group, which includes pro-democracy Republicans worried about attempts to undermine legal elections, who worked to defeat GOP gubernatorial candidate Tim Michels.

“Wisconsin is extremely important for the presidency,” New York Senator Chuck Schumer, the majority leader, told the Times. “The Supreme Court is the firewall to an extreme Legislature that wants to curtail voting rights. And so this election is very important, not just for Wisconsin, but for the country.”

Wikler’s message to potential donors is chilling: “This race will make the difference between Wisconsin being a laboratory of democracy or a laboratory of autocracy. This is for all the marbles.”