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This is Swing State of the Union, a podcast all about why Wisconsin is so important to U.S. politics.
Today, we're talking about money in politics. On this episode, we'll focus on super PACs and lobbying, how nonprofits engage in political activity, and how monied interests have helped politicize the Wisconsin Supreme Court. But we'll start with the basics of campaign finance.
July 15 is a big day for politicians and candidates running for office this year in Wisconsin. It's not an election day, but it's the next date they'll need to file campaign finance reports with the state Ethics Commission.
These reports include itemized lists of donations and what they spend money on from renting office space to ads to gas, money and everything in between. It's a basic part of running a modern campaign, and candidates owe this regular accounting headache to the creation of the Federal Election Commission, or FEC.
After the Watergate scandal brought to light campaign finance abuses in the 1972 presidential election, the FEC was created to administer these reports and enforce campaign finance law.
Sarah Bryner is the research director at OpenSecrets, an organization that tracks money in politics. She notes that while these reports don't end all campaign finance abuses, they are an important start to understanding what or who is influencing politicians.
“Even the basics of politics, even the general finding that, you know, the local real estate developer down the street contributed the maximum amount to one of the party candidates running in your district, that is useful information to most voters because they know to whom the politician may ultimately be beholden,” Bryner says.
Once candidates have campaign contributions in hand, typically they will spend it on day-to-day campaign operations and media ads. Bryner explains that there are certain things candidates can't spend campaign money on.
“You can't, you know, spend it on your own personal happiness. Like you can't use it to fund a vacation to Mexico that is considered to be misinforming your donors and is sort of a fraud consumer protection issue. Candidates certainly use the money for self-improvement. You'll see candidates putting like haircuts and whatever on their candidate expenditures, but typically it's mostly spent on media advertisements and so on,” Bryner says.
Individual donors are only the beginning of the story. Political action committees, or PACs, are groups of donors usually affiliated with a corporation, union or nonprofit that collect donations and give those funds to a candidate or a campaign. These groups have formerly existed since the 1940s.
But in 2010, two court rulings would upend decades of precedent regarding money in elections, Citizens United and SpeechNow.
Citizens United v. FEC was the case brought to the U.S. Supreme Court regarding campaign finance laws. The group Citizens United wanted to run ads for a movie critical of Hillary Clinton before the 2008 primaries, which the FEC prohibited. The court not only ruled that the FEC's prohibition was unconstitutional, but also that the First Amendment protected unlimited donations to political groups.
A couple months later, another court reached a similar decision. In that case, SpeechNow v. FEC, the D.C. Circuit Court of Appeals held that political groups could spend unlimited amounts of money on election related issues so long as the group didn't coordinate directly with a candidate.
Bryner explains how together these rulings created what we now know as super PACs.
“So in combination, Citizens United allowed for these unlimited donations. SpeechNow created a vessel that could receive them. Hence the birth of what we now know as super PACs, which are allowed to spend huge amounts of money and receive huge donations from individuals or things so long as they do not talk to or coordinate with the political candidate that they're benefiting and so that was a seismic shift in political fundraising. And now we see super PACs being almost as bread and butter to the political process as the candidate committees themselves are. So it really has changed everything about money in politics,” Bryner says.
But ensuring that super PACs don't coordinate with candidates is tricky. In Wisconsin, Fix Washington PAC is a prime example of this. It's supporting Wisconsin U.S. Senate candidate Republican Eric Hovde.
“The interesting story behind Fix Washington PAC is that it's a super PAC supporting Eric Hovde and is funded almost entirely by Eric Hovde’s brother Steven. So that is an interesting and unusual situation, because it really starts to beg the question of whether or not your brother can coordinate with you. Is that coordination restriction? Like they're not allowed to talk? Does that make sense in that kind of situation? It's pretty messy and I think a lot of people would raise their eyebrows when they see this, but that's the state of play right now,” Bryner says.
And it's not just Hovde, Bryner explains that these kinds of eyebrow raising arrangements happen all the time with candidates and super PAC sharing staff, office buildings, or even the same treasurer.
“So, you know, I think that legally there's still some difference of opinions perhaps in what coordination looks like, specifically. I will say that I haven't seen much to suggest that it's enforced particularly well,” Bryner says.
After Election Day, money can continue to sway politicians.
A lobbyist is someone who's hired for the purpose of influencing legislation.
They can do that by formally meeting with a politician about an issue or even drafting legislation. The exact rules on what counts as influencing legislation vary by state. The key part here is that lobbyists are paid for this work. If you speak to a politician at a campaign event about issues you care about, you're not a lobbyist.
But if an organization pays you to talk to a politician about that issue, you are a lobbyist. For example, a teachers union lobbyist may advocate for a school funding bill. A chamber of commerce lobbyist may push for tax cuts for businesses.
Similar to campaign finance reports, lobbying is tracked. In Wisconsin, lobbyists must register with the Wisconsin Ethics Commission and track the hours they spend lobbying on issues.
JR Ross, editor of Wispolitics.com, explains how lobbyists use their time and how money factors into the relationship between a lobbyist and a policy.
“Lobbyists can have input on how bills are drafted. They will submit their ideas. That's one thing you can do. If somebody [has] written a bill that you don't like, you go in and talk to people and try and push back and knock it down. I mean a lot of it is basically meeting lawmakers. Lobbying groups and lobbyists also give money to lawmakers. But there are restrictions on that. So I can't, like, go lobby the budget in June of 2025 and give you a $500 check while I'm talking to you, that doesn't happen or not supposed to happen. But there's a window every session where lobbyists can give donations, and they do. But lobbying groups and lobbyists don't buy public officials. I mean, you're not going to buy somebody for 500 bucks, but they'll return your phone call. You know that that's true for both sides of the aisle, that if you've got somebody who is a financial backer, they want to talk about something, you won't necessarily do it but you’ll at least listen to them. You know, that's just kind of how it works,” Ross says.
Campaign finance and lobbying are only part of money's influence in politics. 501C3 nonprofits also play a role. They cannot donate to campaigns, but they can fund other types of political action.
The Bradley Foundation is a 501C3 nonprofit based in Milwaukee that funds organizations throughout Wisconsin and the nation. Some of its philanthropy is nonpartisan, including contributions related to the arts, especially in Milwaukee. But in 2016, leaked internal documents showed the Bradley Foundation's concerted effort to build a network of conservative organizations in Wisconsin and export that model to states across the nation. This has been a major factor in Wisconsin's move toward political polarization.
Dan Bice is the watchdog columnist for the Milwaukee Journal Sentinel, and he got a hold of these documents and wrote about them in 2017. He joins us now to talk about the groups the Bradley Foundation funded and their efforts to turn Wisconsin red.
Joy Powers: What is the Bradley Foundation?
Dan Bice: It's probably the most powerful entity in Milwaukee that you've not heard of. It was a couple of brothers who had some money and they decided to set up a foundation. It started to really take off in the ‘80s. Today it has a portfolio of about a billion dollars and as a foundation, you have to give 5% of your money away. And there were two things that the brothers wanted the money invested in one, in local entities, and two, in conservative issues, politics, that sort of thing. As a nonprofit, you can't put it into a candidate’s campaign fund or into a political action committee. But you can put it into other nonprofits that agree with your points of views, and that's what they do. As opposed to a lot of other conservative groups, they're thinking long-term, they're frequently thinking about issues before they become issues.
Sam Woods: What are some of the organizations that they've supported?
Bice: Someone internally, according to these records, showed that that they were interested in what was going on in Colorado. And Colorado had gone from being a purple state to a solidly blue state, and people internally were saying can we do something like this that would turn Wisconsin from a purple state into a red state. So they began constructing and building a conservative infrastructure here, and they decided they would try to build that in other states as well. Some of the organizations they have now, the Badger Institute, the MacIver Institute, which is in Madison, those help frame issues. Both of those help decide what the issues are and what should people should be talking about. Wisconsin Institute for Law and Liberty, probably the most successful group that they have set up in the state, it's a legal group with about 10 attorneys and they sue over a number of issues. And as I said, you can see what's going to happen nationally on issues by looking at what they're doing. And with WILL, the Wisconsin Institute for Law and Liberty, you can see right now, they've been in a fight with the State Bar over DEI, diversity, equity and inclusion, issues, and arguing that this is not constitutional. I think this is something that they or others would like to make a national issue and take before the Supreme Court at some point. Other groups, Parent Choice, a school choice group that is back to their roots on these sorts of things. The Institute for Reforming Government, they'll take the state budget each year, every couple of years and break it down and say what are the issues here and they actually are helping conservative lawmakers understand how they should be thinking about something as complicated as the Legislature. It's a very important task and something that that the Bradley Foundation is helping to push for. The Center for Research on the Wisconsin Economy, that's an entity at the University of Wisconsin-Madison. And then finally, the Wisconsin Education Freedom Coalition and that's a center that was created at the Wisconsin Manufacturers and Commerce. So as I said, they have about a billion dollars in assets and they have to give 5% away each year. And so you're talking $50 million annually that they pump into the system. And they have, you know, elaborate records on who they've given to in the past. And they're very open about who they give money to.
Woods: So how does the Bradley Impact Fund fit into this network?
Bice: The Bradley Impact Fund is not connected to the billion dollars that they have. In political jargon, it's a laundromat. Anybody can give money to it and recommend how they spend the money. Initially it started off as a very small entity that gave away hundreds of thousands of dollars. I could say give the money to you and then tell you I would like you to give it to this particular entity. And unlike with their spending where they show everywhere that their money those on the other ones, they here show where their money is going but they don't show who it's coming from. So someone in 2022 gave them more than $20 million and we don't know where that money went. We know that they gave money to any number of organizations, but there isn't a dollar to dollar match. So we don't know how that money is spent or who gave the money to them. It's something similar to The Metropolitan Milwaukee Area of Commerce, where they do the same thing where you can give money to them and your name never comes out, so you're able to hide the source of the money to these entities and I'll give you an example. In the last couple of years, the Bradley Impact Fund has been the biggest supporter of Project Veritas. Project Veritas is this organization that was originally created by James O'Keefe, where they would have undercover individuals go into mainly liberal organizations or to media outlets, they would prod people into saying stuff and then they would publish this up publicly and try to embarrass them. The Bradley Impact Fund gave more than $6 million to Project Veritas, which has run into a number of problems financially, but I see it's still operating. We don't know who gave them the money and asked them to give to them. They're not legally bound to give the money to these entities, so it could have been someone gave them a lot of money and they decided to give a portion of it to one of these or how exactly that operates, so it's a little bit of a darker side of what's happening with the Bradley Foundation.
Powers: Here in Wisconsin, what has this network been able to accomplish?
Bice: One big thing is school choice. I mean they helped create the issue and that's why it started in Wisconsin and then spread to all these other places. Is that the Bradley Foundation made that an issue here. But I would say that their record in Wisconsin is mixed because they weren't able to accomplish here what Colorado was able to accomplish in terms of flipping the state in one direction or another. I was at the Republican convention another day and someone mentioned that Republicans had lost 22 of the last 25 statewide elections. So they've been able to build up this ideological infrastructure to think about issues and how we should be spending money, but they've not been able to shift the state into the the red category permanently.
Powers: So you mentioned that when these documents came out about the Bradley Foundation, it was looking at how to export this kind of conservative infrastructure to other states. What did that look like?
Bice: So they tried the different groups here and they took the ones that had been effective and decided to start putting money into similar groups elsewhere. For instance, the Wisconsin Institute for Law and Liberty, the group that is doing a lot of work on legal issues, they're funding more lawsuits over open records and open meetings law than just about anybody now. But their success showed that this could work in other places. And so in Arizona, for instance, they set up the Goldwater Institute and it does very much the same thing. In other states, I think they're about 12 states where they're funding these legal institutes.
Woods: So what's the future for the Bradley Foundation?
Bice: I would not be surprised if they're putting more money into election related stuff because the votes are so contested now and so close now with the five or six swing states, including Wisconsin, the work on our election is not done on election day. Depending on how close the election is, we could be for two months trying to figure out who is the winners and who are the losers. And many of the arguments on those issues will be by the attorneys and the organizations that the Bradley Foundation has supported. And then to the DEI, the diversity equity, inclusion, we're seeing the start of that with WILL, but I think that's just a foretaste of what's going to happen. I think private organizations have bought into that and with good reason I think, but I think it's going to be something that ends up in in the courts and I think they want to provide as much intelligence and as much information to bolster their position on it. The thing is, they're a lot smarter than I am, so I don't know what their other issues are that are going to be coming for, but you can bet they're thinking about those things right now.
Dan Bice is a watchdog columnist for the Milwaukee Journal Sentinel. Now, we'll talk about how money has influenced the courts.
Wisconsin is among a minority of states where voters elect its Supreme Court justices, and one of just 14 states where the election is nonpartisan. According to Jay Heck, executive director of Common Cause in Wisconsin, there was a time when Wisconsin Supreme Court elections were among the best in the nation.
“By that I mean nonpartisan, relatively low campaign spending, civil and you ran as a nonpartisan. And it was not at all uncommon in the late 1990s and even into the early 2000s for a candidate for the Wisconsin Supreme Court to seek the endorsement of both a former Republican and a former Democratic governor for their candidacy, because that really demonstrated nonpartisanship and that was what was prized,” Heck says.
That began to change in the 2000s.
Heck says that powerful groups like Wisconsin Club for Growth and Wisconsin Manufacturers and Commerce thought to run issue ads. Those are ads that aren't explicitly about the election but are meant to vilify or celebrate a candidate based on policy positions.
In 2007, the U.S. Supreme Court's decision in Wisconsin Right to Life v. FEC removed restrictions that barred these groups from running issue ads in Wisconsin and nationally. The impact was felt almost immediately.
“That was the first election where we had a multimillion-dollar campaign for the Wisconsin Supreme Court and really since that time, with only a couple of exceptions, we've seen the amount of money increase at first quite a bit and then exponentially. But it was a steady increase in both partisanship, polarization, involvement of the political parties, erasing that reputation that Wisconsin once had as being a haven for clean elections and an impartial judiciary,” Heck says.
Things have only accelerated since then. In 2023, Wisconsin had the most expensive and highly partisan state Supreme Court race in U.S. history, when then-Judge Janet Protasiewicz faced off against former Wisconsin Supreme Court Justice Dan Kelly. Money poured in from out of state.
Jessie Opoien covers state politics for the Milwaukee Journal Sentinel, and she covered this race.
“We had probably one of the most partisan and definitely the most expensive state Supreme Court races we've ever seen here in Wisconsin. Janet Protasiewicz, Milwaukee County judge, was running against Dan Kelly, who was a former Supreme Court justice, very much defined by the Liberal versus conservative or, you know, Democrat versus Republican lines and it ended up being the most expensive state court race in the entire history of the country. I think the previous record was somewhere around $15 million and this was more than $50, so 15 and 50,” Opoien says.
There was another unusual thing about this race - the explicit way that political issues were being discussed. As a candidate, Protasiewicz was vocal on her opinions on a wide array of issues, including abortion and redistricting. It was a departure from her more reticent opponent, and most previous candidates.
“The fact that Janet Protasiewicz was really willing to put some of her personal views out there and talk specifically about redistricting and say, you know, that she thinks the maps are rigged and she would enjoy taking a fresh look at them and talking about, you know, believing in the right to abortion, but also saying that her personal beliefs would not influence necessarily how she would rule on things. It has been rare for a judicial candidate to speak so freely about such sort of divisive issues,” Opoien says.
Kelly was less explicit about his opinions, but on a right wing radio show, he assured listeners that he would support conservative positions on gerrymandering, gun rights and workers rights if he was elected. The direct partisanship of this election seemed unusual to many court observers, including Opoien. This was borne out in the donations as well.
According to Wispolitics, the Democratic Party of Wisconsin donated nearly $10 million to Justice Janet Protasiewicz's 2023 campaign. Dan Kelly received around $850,000 in support from the state Republican Party. After her win in April. Justice Protasiewicz's relationship with the Democratic Party was questioned by Republicans and right-leaning groups.
“When the question of redrawing maps came before the court, you saw Republicans asking her to recuse herself from that. You know, not because the state Democratic Party was an actual party in the case because it wasn't, but because they argued the Democratic Party would stand to benefit from new maps being drawn,” Opoien says.
Assembly Majority Leader Robin Vos, a Republican, even threatened to impeach her over her refusal to recuse herself from the redistricting case that decided the fate of Wisconsin's legislative maps.
Here he is on WKOW in Madison: “She has prejudged the case by basically saying that everybody agrees with X,Y or Z. That's no different than prejudging a case in any other circumstance. It's the basic principle of the law. If you think about the scales of justice, the entire idea is that she is blindfolded because you're supposed to have an impartial system. If somebody starts out a case by saying that certain things are obvious. They're not impartial. So I think that's clear that she needs to recuse herself.”
All but one of the current justices on the Wisconsin Supreme Court have received donations from political parties, but none of them have recused themselves from cases that would affect the parties.
According to Jay Heck with Common Cause Wisconsin, there are many states that force justices to recuse themselves from these cases. But that's not true in Wisconsin, and for that you can thank a change in the recusal rules in 2010, sponsored by some of the most powerful conservative lobbying groups in the state. The justices had a chance to change the rules once again in 2017.
“In 2017, there was a petition put forward by former Wisconsin Supreme Court justices and retired judges all over the state that would ask the Wisconsin Supreme Court to impose strict recusal rules if they received campaign contributions above a certain threshold or an outside group came in and spent money on their behalf. And the Conservatives on the court voted it down. They said, ‘No, it's up to each justice and each judge to decide for themselves whether they should step aside if they're the recipient of a campaign contribution,’” Heck says.
Without strict recusal requirements or barriers to funding these court campaigns, money will continue to flow in from special interest groups, which could create pressure for judges to rule on cases along ideological lines. And the courts have become an increasingly political environment for another reason - political deadlock.
As increasingly divided, politicians have been unable to find consensus through the normal lawmaking process, the courts have played a larger role.
If that continues to be the case, it's unlikely the money flowing into these elections will slow as Opoien notes.
“I think we're only going to see races get more expensive and more politicized until there's a major reset, which who knows what will trigger that. But you know, courts have just been increasingly more and more responsible for setting, you know, policy outcomes and litigating things that divided government can't figure out on it’s own. So I think we're only going to see it trending up in the near future and, you know, maybe we'll see it even out decades from now,” Opoien says.
But Jay Heck sees a way out of this. He says there are a number of things we could do to make court races less political and less influenced by special interest groups. He says stronger recusal laws, disclosure requirements and public funding of these races could begin to mend the problem. This would be a return to some previous norms and something we've tried in the past.
In 2009, Wisconsin passed the Impartial Justice Act, which put a voluntary spending limit on Supreme Court campaigns.
Heck explains, “After the terrible experience in 2007 and 2008, after those elections for the Supreme Court both surpassed $3-4 million, Republicans and Democrats got together and said, ‘Well, at the very least, we should make sure that this money doesn't begin infecting the Wisconsin Supreme Court anymore.’ And so they passed 100% public financing.”
That ended in 2011 under the leadership of former Republican Governor Scott Walker. The Republican Legislature repealed the law and ended spending limits for all elected positions in the state.
And in Wisconsin, there's no rest for the weary, although there isn't a Wisconsin Supreme Court race on this year's ballot, there will be one in each election for the next five years, and the stakes are high as Heck explains.
“Unless things change, we're going to see a Titanic struggle for the ideological soul of the court in Wisconsin. And as we know, who controls the Supreme Court controls a lot of the political agenda and the way things happen in Wisconsin,” he says.
If the pattern continues, these races will continue to be proxy battles for the state's biggest parties and money donors hoping to get more favorable rulings from an ideologically polarized court.
And the state Supreme Court candidates won't be the only campaigns influenced by big money. As we've discussed political parties, super PACs, nonprofits and lobbyists will all continue to play a role in our elections.
On the next Swing State of the Union, we'll explore that 2020 election, the January 6 insurrection and what's happened since.
“When you read that, it doesn't look like there was a belief that this was legally correct. It was more about just trying to win, you know, and trying to preserve power and overturning election," Milwaukee Journal Sentinel reporter Molly Beck says.
2020, next time on Swing State of the Union.
"Swing State of the Union" is produced by WUWM, Milwaukee’s NPR — a part of the NPR Network. Please subscribe to the "Swing State of the Union" podcast wherever you like to listen.
