Last Tuesday, voters went to the polls in Wisconsin. On Wednesday, with only 204 votes separating the two candidates in the state Supreme Court race, JoAnne Kloppenburg declared victory over incumbent Justice David Prosser. As voters were still reeling from the costly, controversial, and negative campaigning that defined the Supreme Court race, they received another bombshell — the Waukesha County Clerk discovered an error in her reporting. Votes from the city of Brookfield, which went heavily toward Prosser, were not included. Now, Prosser leads by more than 7,000 votes, and it looks like he will pull out the win.
Although the results are still not official, one thing is — this election set a new record for special interest spending on television ads in a Wisconsin judicial race, with five groups spending just under $3.6 million on ad buys before the election. This tops the previous record of $3.38 million, which was set in the notorious 2008 election between now-Justice Michael Gableman and then-Justice Louis Butler. Of the approximately $3.6 million spent this year, one liberal-leaning group, seeking to elect Kloppenburg, spent an estimated $1.36 million. Four conservative-leaning groups, seeking to re-elect Justice Prosser, spent a combined $2.21 million.
Under Wisconsin campaign finance law, special interest groups are only required to disclose spending on political communications if they expressly advocate for the election or defeat of a candidate — by using so-called “magic words” like “vote for,” “elect,” “vote against,” or “defeat.”Advertisements that use these magic words represent only a tiny fraction of all political spending, however, and groups can easily avoid disclosure requirements by running issue ads that are understood by voters as an appeal to vote for or against a candidate, but don’t use the magic words, and therefore don’t have to be reported.
The “Pedophile Priest” ad aired by the Greater Wisconsin Committee was one of the most controversial ads of the election, alleging that Justice Prosser failed to adequately prosecute a sex offender when he was a prosecutor three decades ago.
This ad was not considered express advocacy, and therefore while its message of support for JoAnne Kloppenberg was unmistakable — Prosser supporters demanded that Kloppenberg denounce the ad — the GWC was not required to report this expenditure.
Similarly, ads attacking Kloppenberg, which urged voters to call her to “tell her being weak on criminals is dangerous for Wisconsin families,”were not subject to disclosure requirements.
Because there is no required authoritative reporting of independent spending, the Brennan Center for Justice does not seek to quantify all spending by independent groups. Instead, we track spending on TV advertisements as a way to estimate the volume of special interest spending because we are able to get consistent, reliable data that allows us to compare spending trends from year to year (and state to state). This data is provided by TNS Media Intelligence/CMAG, which captures TV satellite data in the nation’s media markets and then estimates the costs of buying airtime based on the networks ads air on and the time of day they are broadcast. These calculations do not reflect ad agency commissions, the cost of producing advertisements, or airtime purchased on local cable networks that are not aired by satellite. Accordingly, these estimates are conservative, and underestimate the precise actual amounts of expenditures.
For more information on spending in the election, and to view more TV ads that ran in the race, check out our Wisconsin judicial financing page.