Millions will be spent in this year's battle for the Wisconsin legislature. But the candidates won't know where most of the money is coming from. They'll be bystanders in their own campaigns.
One morning in the fall of 1998, Judy Robson woke up to the sound of a radio ad talking about the special needs of older people. "Maybe it's for Geritol," she remembers thinking. But it turned out to be a testimonial--for somebody living in her hometown of Beloit, Wisconsin. This person sounded like a saint--willing to go to any length to make the lives of senior citizens a little brighter. "Who could that be?" she mused.
Then she found out. "Judy Robson," the announcer intoned. "She has given a lifetime of service for the community. Taking care of people, keeping them healthy."
To the unpretentious Robson, it was more than a little embarrassing-- it was bizarre. "Where on earth is this coming from?" Robson asked herself. It took her only a few seconds to figure it out. The testimonial was coming from the Wisconsin Education Association Council. Robson was running for the state Senate in a close race, and the teachers' union badly wanted her to win so that the Senate would stay in Democratic hands. They had launched a series of independent expenditure ads that made her sound like Mother Teresa. But they didn't tell her about the ads because that might have been considered collusion--a felony under state law.
As the campaign proceeded, Judy Robson encountered a new batch of ads that were equally surprising but much less flattering. One of them showed her next to a lava lamp, and suggested that Robson, a student activist 30 years ago, was still somehow a representative of the counter-culture. It said she had "never met a tax she didn't think was groovy."
As negative ads go these days, that's a pretty mild specimen. Even so, Robson was eager to find out where it came from. She knew the ad was placed by Wisconsin Manufacturers and Commerce, so probably it was initiated by one of the WMC's member companies. But the manufacturers don't disclose the original sources of their campaign money, and the courts say they don't have to. The anti-Robson ads were labeled "issue advocacy," aimed at informing the public. They did not expressly endorse or oppose any contestant for office, and thus could not be regulated as a campaign expense.
It may seem a little odd for a TV "issue ad" denouncing a candidate in the middle of a close state Senate contest to be called anything but an obvious campaign gimmick. But almost everything about Wisconsin politics is a little strange these days. You run for office, your friends bombard the air waves with testimonials, and you're the last one to hear them. Your enemies heap piles of abuse on you--and there's no way you can be sure who's behind it. If you happen to be running for the legislature in a marginal district, there's a good chance you'll end up feeling like a pawn in someone else's very expensive game.
Nothing that's happening in Wisconsin politics is exactly unique to that state. Both independent expenditures and so-called issue advocacy are creatures of the U.S. Supreme Court, which held in 1976, in Buckley v. Valeo, that they are entitled to the full protection of free speech under the First Amendment. A whole series of subsequent decisions, at the federal level and in more than a dozen state courts, have reinforced that view.
Both forms of spending were used heavily in the 1996 presidential and congressional elections, and even more heavily in 1998, when more than $300 million is estimated to have been spent nationally on issue advocacy commercials alone. By mid-March of this year, the Annenberg Public Policy Center reported recently, issue ad spending throughout the country was already over the $100 million mark, headed for record- breaking levels as the campaign season proceeds.
As the dollars have mounted, Congress has begun to take an interest in the issue ad problem: The Senate passed legislation in June to require disclosure for some of the groups financing the ads, and the House plans to vote on a similar measure. But it's not clear that any substantive reform of federal law will take place this year--and even if it does, the escalation of issue ad politics at the state level seems likely to continue.
Nowhere has a state political system been transformed by these expenditures the way Wisconsin's has. And it has all happened disconcertingly fast. Five years ago, issue ads had never even been used in legislative campaigns there. Candidates raised most of the money and made the important strategic decisions. Today, hardly anyone is surprised when a close campaign for the state Senate costs a million dollars--and most of the funds are raised and spent, and crucial decisions made, without the candidate knowing a thing about it. The bulk of the money comes from Wisconsin, but a significant portion comes from outside the state.
Wisconsin politics is now dominated by two big interest group clusters. One centers around the WMC, with the Farm Bureau, Realtors and builders as allies. The other has WEAC at the center, and trial lawyers and the state AFL-CIO in supporting roles.
Among members of the legislature, the most common lament is that "we have lost control of our campaigns." It pervades both chambers and cuts across party lines. "Our campaigns have been hijacked," Judy Robson says. "You have your message, you have your strategy, and then bing--these ads come in and they've taken over your campaign." Republican Dale Schultz, one of Robson's Senate colleagues, agrees. "What we're seeing," he says, "is the steady erosion of the political process. Candidates are about one election away from being totally irrelevant."
Of all places, one might reasonably ask, why is this happening in Wisconsin--the home of political reform and progressive governors, and one of the most scandal-free states in American politics?
It is happening for a few simple reasons. One is the close balance in the legislature. For most of the past decade, the Senate has been a seat or two away from switching party control; the Assembly has been just a few seats away. Were either institution overwhelmingly Republican or overwhelmingly Democratic, no major interest group would be investing huge sums in its elections. But as things stand, a handful of marginal districts each year determine who gets the gavel the following January--and the right to set the agenda.
From the perspective of the manufacturers, the difference is between a legislature eager to provide tax relief and one determined to impose onerous new corporate burdens. From the point of view of the Wisconsin Education Association, it is the difference between an institution friendly to teachers and labor causes, and one that sees unions as a malevolent force in the state's affairs. The opportunity to tip that balance is too tempting to resist.
A second reason is that Wisconsin, unlike many large states (including neighboring Illinois), prohibits direct corporate contributions to political campaigns. So business has to find other ways to make its presence felt in the political process. The court decisions establishing unregulated "issue advocacy," with no need for disclosure, have turned out to be the perfect vehicle.
Then there is the failure of public financing. Wisconsin actually had one of the early systems of public financing for legislative campaigns, and it worked reasonably well for a while. But it was not indexed for inflation, and by the 1990s, the fund simply was not providing subsidies large enough to persuade candidates in competitive districts to accept it. So it is essentially useless.
Finally, and inescapably, there is the presence of WEAC--the Wisconsin Education Association Council. Teachers are a major political force in dozens of states around the country, but they may be strongest of all in Wisconsin. WEAC was instrumental in the Democratic takeover of both chambers in 1974--creating majorities that lasted nearly two decades. In the 1980s, as partisan competition grew more intense, it was the teachers who provided the dollars and organizational help to keep Democratic strength intact.
That's also when the teachers began experimenting with independent expenditures, running TV and radio ads in support of their favored candidates. These came with full disclosure of the source. There was no reason for WEAC not to reveal the source of the money, because everyone already knew: The source was the dollar a month that the group automatically collected from the dues of the union's 90,000 members. Republicans complained, but did little to challenge this arrangement.
As late as 1995, few on either side saw anything momentous in this independent spending. And no one at all realized the potential importance of issue advocacy. "I'd never even heard of the concept," says James Buchen, the manufacturers' lobbyist and chief campaign tactician.
Then came one dramatic special election--a recall election for the state Senate, with Republicans holding a 17-16 lead. There was outside involvement on both sides, but it was the Sierra Club, to the surprise of many, that tried something genuinely new: issue ads, rather than conventional independent expenditures. They were a transparent attempt to influence the outcome, but they were done with precision. There was no outright support or opposition expressed toward any candidate, and thus no need for messy disclosure. And the ads did influence the outcome. The Republican incumbent was recalled, the Democrats took back the Senate, and the state's political process was on its way to what has become issue advocacy addiction.
By 1998, it was obvious that the rules of the game had changed. That fall, with the legislature again on the line, the state began to see elections in which the efforts of outside interests substantially exceeded those of the candidates.
A prime example was the 27th District, in the Madison suburbs, held for years by a Democrat who chose to give it up. Republicans felt that they could win it, and that winning would guarantee them control of the chamber.
The race began as an evenly matched contest between Democrat Jon Erpenbach, a relative political newcomer, and GOP nominee Nancy Mistele, a longtime school board member. But by Labor Day, it was a fight to the death between the teachers and the manufacturers.
"The campaign was totally out of my control," Erpenbach says. "It's almost like I was a golfer with some sponsor's patch on my sleeve. `Jon Erpenbach brought to you by the WEAC.' People would come up to me and say, `Oh, you're the teachers' guy.'"
In one TV ad, a citizen complained that "the Madison teachers' union and Jon Erpenbach say Wisconsin needs higher property taxes. I say higher taxes may cost me my home." In other ads, the WMC and the WEAC essentially took the opportunity to attack each other, with the candidates scarcely mentioned. "I was a bit player," Erpenbach says ruefully.
When the votes were counted, Erpenbach and his sponsors had narrowly won. All told, the campaign cost well over $1 million. Erpenbach himself raised $181,000--no small sum in a Senate district--and Mistele about $300,000. But the teachers and the manufacturers together spent $650,000 on broadcast advertising alone. "WEAC and WMC," says one Madison campaign veteran, "were like two giants battling on the plains of Israel. I think they balanced each other off. There was no David."
The 2000 campaign has already begun, and the Wisconsin Senate is once again in play, with Democrats clinging to a 17-16 advantage. It is widely assumed that the Erpenbach syndrome of 1998 will return in an even more massive way. "It's going to be a bloodbath," says Michael McCabe, who leads a reform group called the Wisconsin Democracy Campaign. "Many more groups are going to be committed with issue advocacy.... There are a lot of people starting to say that this is madness."
If so, much of it will be played out in the rural northwest corner of the state, in the 10th Senate District. Democrat Alice Clausing is the vulnerable incumbent. The manufacturers are bent on defeating her; the other side seems equally determined to save her.
The only way to advertise on television in the 10th is to buy time on Minneapolis stations. If one side goes that route, the other will follow, and total spending could far exceed that of the Erpenbach- Mistele showdown in 1998. Clausing is certain of one thing: "This," she says, "will be the campaign that swings public sentiment in favor of campaign finance reform."
In many ways, the whole thing resembles an arms race, and that is how many of the participants characterize it. "For us," says John Stocks of the WEAC, "it's a function of what WMC decides to do. We are prepared to play the role of the equalizer if necessary." The WMC sees it a little differently. The Democrats, says James Buchen, "want to have WEAC alone on the playing field. Until we came along, they had it to themselves. If anything, we've leveled the playing field."
Buchen makes an argument that the legislators themselves never make. He says the autonomy of the candidates is not necessarily equivalent to the public good. "It's interesting," he says, "that the candidates think the campaigns belong to them. Politicians have deceived themselves that they are the source of honest truth and discussion in elections. Everybody has an ownership interest in the campaign. If we don't come in and talk about taxes and hold their feet to the fire, they may not talk about it at all."
Brady Williamson, a Madison lawyer who argued the case for unrestrained issue advocacy before the state Supreme Court, admits that "perhaps the process is being `taken away' from the candidates. But it was never the candidates' exclusive franchise.... The framers wanted a system in which there were many voices."
Buchen and Williamson are clearly right about one thing. The ultimate test of the system isn't the hurt feelings of candidates who find themselves being ignored at campaign time. The test is the consequences that it creates for government. On this question, the answer is far from clear.
There are those who insist that, for all the money spent by interest groups, the return on investment has been meager. Both the teachers and manufacturers have taken aim at several vulnerable incumbents in the past two election cycles, but with just one exception, the incumbents have survived. Kenneth Mayer, a University of Wisconsin political scientist, looked closely at several of these free-spending contests and concluded that "issue advocacy appears to be a remarkably ineffective way to influence elections."
What the money unmistakably does, however, is set the agenda. "You'll get a lot of debate over how effective these ads are," says McCabe. "But there's no question that they shape the whole debate." He's right. Visit any district where WEAC and WMC are at each other's throats, and you'll find that the predominant issues by far are taxes and education. Anything else the candidates might want to emphasize is likely to be drowned out. Nobody disputes that taxes and schools are important subjects. But making them the only subjects is worrisome.
Just as troubling is the question of what the big-money campaigns have done to the legislature itself. Five years ago, veteran observers will tell you, the Wisconsin Assembly and Senate were competitive but reasonably well-mannered institutions, with a substantial amount of cooperation among individual members across the aisle.
In the wake of the changes in the campaign system, the sessions have degenerated into bitter struggles between two highly partisan and combative teams, each built around a set of interest groups, each maneuvering to protect itself politically and gain advantage in the next round of elections that will decide control. "It has changed the whole nature of lawmaking and public policy," says Jay Heck, a longtime Common Cause lobbyist in Wisconsin. "It's worse than it's ever been."
Not that the legislative result of the past few years has tilted much to either side. What it has mainly tilted toward is stalemate--budgets approved weeks or months behind schedule, tedious and angry debates over minor matters, and virtually none of the ambitious public policy experimentation that Wisconsin has traditionally been noted for. "It hasn't really been either a pro-business or pro-labor legislature in the last five years," says University of Wisconsin political scientist Donald F. Kettl. "We've been gridlocked."
Last summer, Assembly Republicans walked out of budget negotiations with Senate Democrats, delaying adoption of the state budget for three months. This spring, just before the end of the session, a bipartisan group of eight legislators formed a "Council on Civility" to reduce some of the tension. "When partisanship becomes more important than the policy being debated," one of them said, "then something has gone horribly amok."
About the only players who can be said to have benefited from these changes are the top leaders. As recently as the mid-1990s, Wisconsin's legislature seemed to be evolving, like those in most other states, toward a system in which individual members possessed considerable autonomy and the leadership had relatively few weapons with which to keep them in line.
The new campaign system has changed those relationships in a way nobody expected. With more partisanship have come tighter discipline and more control by the two top leaders--at the moment, the Republican Speaker of the Assembly, Scott Jensen, and the Democratic Senate majority leader, Charles Chvala. They are the ones who find the candidates in the swing districts, raise money for them, work out strategy and message for the party as a whole and coordinate tactics with the major interest groups, to the extent that can be done within the confines of the law. Most of the disclosed money from political action committees goes to the leadership, not to the individual candidates. The leaders largely determine how it will be spent.
"The members are much more beholden to legislative leaders than I've seen in 20 years," says lobbyist Michael McCabe. "It's been such a dramatic shift in such a short time. It doesn't seem to mesh with the state's political culture."
Moreover, there are those who wonder whether it is only a matter of time before even the leadership is forced to yield some of its clout to the interest groups that are financing the whole operation. "The leadership has no control over the WMC," says Jon Erpenbach. "They have no control over WEAC. Pretty soon, the leadership won't even have much say over the process."
In short, Wisconsin politics is a mess, and it's not difficult to envision it getting even worse over the next few years. Unless, of course, the legislature finds a way to halt the arms race. No matter how the elections come out this fall, efforts will be made next year to do that. The issue of campaign finance has already been guaranteed a place on the 2001 agenda. But the obstacles that stand in the way of a solution are formidable.
One approach would be to craft a law stating that a specified kind of issue advocacy--say, a broadcast in the month prior to an election, and featuring the name and/or likeness of a candidate--is, in fact, a campaign ad and subject to disclosure. This has been recommended by a legislative committee that Judy Robson co-chairs. Some experts believe it could survive a court challenge; others do not. If such a law survived, it might reduce drastically the number of issue ads. But the manufacturers and their business allies would be certain to fight it, because it would dismantle their favorite weapon without inconveniencing the other side at all.
The business coalition believes that the real culprit is the automatic dues deduction that finances the WEAC independent expenditures. Take the deduction away, they say, and the WEAC commercials would disappear. Then there would be no need for the manufacturers to retaliate. But like the disclosure option, this approach is destabilizing--it would penalize one side while leaving the other unaffected.
Another answer might be to grant any candidate matching money to respond to issue ads attacking him. Senator Michael Ellis, the chamber's former majority leader, proposed this in the most recent legislative session, and it passed the Senate before dying in the Assembly. But it presents serious logistical problems. By the end of a campaign, there may not be time to produce an effective rebuttal, or space on the airwaves in which to broadcast it. "You have interest groups buying all the air time," argues Steve Freese, chairman of the Assembly's GOP caucus. "The candidate can't respond--unless he wants to do it at two or three in the morning."
Then there is the possibility of reviving the moribund public financing system. The public financing option, after failing to attract much support nationwide for most of the 1990s, is making a small comeback. This year, for the first time, Maine is trying a system of public funding for legislative campaigns, Vermont and Hawaii are launching them, and a Massachusetts law is scheduled to take effect in 2002. All provide full public financing to candidates who agree to refuse private contributions and abide by spending limits.
Wisconsin actually has had a public financing law for more than 20 years. All it has to do is put some money into the program. But that will not be politically easy. Having had access to massive infusions of campaign money for nearly a decade now, politicians may find it difficult to scale back to an operation built on meager public subsidies. And providing minimally adequate public campaign money would require either a massive expansion of the barely used income tax check-off or a commitment of cash from general state revenues. Whether majority support could be found for this idea, even in dire circumstances, remains open to question.
On the other hand, there are those who believe that if the campaigns this fall are disturbing enough, the time will be ripe to entertain politically risky proposals. "We're near a breaking point," argues McCabe. "After a very ugly 2000, the calls for reform will be that much more intense."
What he is banking on is that come next spring, the loudest voices for change won't be from reform-minded lobbyists like him, but from legislators who finally realize that the current system is squeezing them out of power. "The key," says Jon Erpenbach, "is this: You have to put control in the hands of the candidates. Then you have to find a way to let the interest groups participate. But you can't let them take over. You just can't."
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