The Wisconsin Judicial Commission called the ad misleading and the ad's sponsor, Michael Gableman, later conceded in a public statement that he made his case to voters "imperfectly and in shorthand, a necessity in judicial campaigns." Gableman narrowly won the election anyway and now sits on the court.
Lawyers for the Wisconsin business group have told reporters that their involvement in judicial elections is a matter of free speech, and that judges they help elect should be free to hear cases even when Wisconsin Manufacturers & Commerce is itself a party.
"Individuals and organizations spend money to help elect a judicial candidate precisely because they want that candidate to be a judge that is, to preside over cases, including their own," one of the group's attorneys, Mike Wittenwyler said in a petition to the court. "There is nothing corrupt about that. That is democracy."
After Wisconsin Manufacturers & Commerce spent $2.2 million to help elect conservative candidate Annette Ziegler in 2007, its lawyers filed a friend-of-the-court brief on a major corporate tax case. Ziegler authored a 4-3 decision in the case that ruled in the group's favor.
Notoriety from that episode, along with fallout from the U.S. Supreme Court ruling in the West Virginia case, helped prompt the court to consider new rules spelling out when campaign donations create conflicts of interest. What emerged were new guidelines saying justices do not have to sit out a case just because one of the parties involved donated to them.
At a contentious meeting where the justices debated the new guidelines, Gableman said forcing a justice to step aside would lend credence to the incorrect assumption that "judges, by receiving lawful campaign contributions, are somehow suspect or are going to be swayed or persuaded or more inclined to vote for one party or the other."
"The electorate has the right to support the judicial candidates that they feel are the best," he said.
But Wisconsin Justice Ann Walsh Bradley, one of the three dissenters to the new policy, said she was "dumbfounded" by the decision to let sitting justices solicit donations from parties with pending cases before them.
She said if she described that policy to her friends back home, she knew how they would respond.
"Are you crazy?" would be their reaction, she told her colleagues. "Are you kidding?" The new recusal rules, the majority acknowledged, were taken nearly word-for-word from a proposal drafted by the Wisconsin Manufacturers & Commerce.