Loophole hooey and the WJCIC

Ever since the President of the State Bar of Wisconsin, Tom Basting, formed a committee (the WJCIC) to monitor the ongoing and future election campaign between Wisconsin Supreme Court Justice Louis Butler and Burnett County Circuit Court Judge Michael Gableman, the First Amendment paranoia has been flying thick and furious.

It's plainly unconstitutional! It's an attempt to regulate speech!! zOMG teh librulz!!!!11 Et cetera, et cetera.

Never mind, apparently, that any regulation of speech is already embodied in Chapter 60 (.pdf; 38 pgs.) of the Wisconsin Supreme Court Rules. What the WJCIC has done is merely distilled from the Rules an advertising agreement which simply reminds the main players to abide by those Rules. It has also, in what seems to me a decidedly innocuous request for a mutual gesture of good faith, asked that the two principals sign and return the agreement.

Now we have Rick Esenberg of Marquette University Law School conjuring an invocation of a "Basting test" according to which, presumably, statements made during the campaign are assessed. No word yet on the actual elements of the mysterious Basting test, although a number of clues may be discerned in the popular press.

In an op-ed piece that appeared ten days ago in the Milwaukee Journal-Sentinel condemning the State Bar's "improper role," four corporate attorneys* from three of Milwaukee's largest law firms weighed in with their extrapolations upon the WJCIC agreement. (I hope it didn't take all four of them to come up with this jeremiad.)

"The pledge [sic] seeks to prevent the candidates from engaging in speech that the eight-person committee believes is false, unfair or otherwise offensive," they write.

It does? The closest thing the agreement comes to presenting the WJCIC as an adjudicator on Truth, Justice, and the American Way is that it charges itself with "reviewing" campaign literature. It presents no such standards of "belief," other than those already set forth in the Supreme Court Rules and those Rules' explanatory commentary.

None other than Esenberg himself commended the op-ed in glowing terms. Esenberg, who assiduously seeks to portray himself as above the fray — and occasionally succeeds — has lent his credentials and views of the State judiciary to Wisconsin Manufacturers & Commerce (WMC), a business group that last year devoted more than $2 million worth of issue advertising in generous service to the successful election of Justice Annette Kingsland Ziegler, the formerly ethically-challenged circuit court judge from Washington County.

In fact it was the often low quality of that campaign's discourse that prompted Mr. Basting to institute the WJCIC in the first place. Something about protecting the integrity of the judiciary and the general view of the legal profession, or some such rubbish. As if the President of the State Bar has any business seeking to insinuate himself into these concerns. The cheek and temerity of that man!

Then WMC is embarking on a February World Tour (.pdf; 4 pgs.), at which Esenberg is the featured speaker, albeit his appearance will be live via DVD, hard copies of which will be distributed to the breakfasting revellers. It's unclear whether the DVD contains only Esenberg's mini-disquisition already available here, or an expanded, unedited version. But I'm sure we'll find out sooner or later.

Meanwhile, writing in Madison's independent weekly Isthmus, columnist David Blaska describes the WJCIC as a "front group" for the State Bar (although he also calls Michael Gableman "Max," which may be a strange, possibly Freudian typo or a personal term of endearment). But does Blaska seek out the actual text of the WJCIC's advertising agreement? Of course not, he takes the four corporate attorneys at their word, quotes exclusively from their J-S op-ed number, and concludes, "Tell the Bar's committee to go pound sand." (Emphasis in original.) Relying on secondary opinions when the primary authority is just as easily available ... great work.

No wonder Charles J. Sykes is evidently a fan (for it was He).

As for the advertising agreement itself, it would be difficult to dream up anything more innocuous or less sensibility-offending.

After a series of “whereases,” the actual statements that the two electioneering principals are urged to endorse are presented in numerical bullet points. Premised as they are in the Supreme Court Rules, I can't imagine anyone objecting to any of these blinding glimpses of the bleedin' obvious, with the possible exception of number five, which reads:

I agree, based upon my personal examination of judicial advertisements, to publicly disavow advertisements that impugn the integrity of the judicial system; falsely or unfairly impugn the integrity of a candidate for the Supreme Court; or erode public trust and confidence in the independence and impartiality of the judiciary by verbally or visually attempting to lead voters to believe that a candidate will decide issues or cases in a predetermined manner.

Donning my strict constructionist hat, I notice that the First Amendment to the U.S. Constitution makes reference to "abridging the freedom of speech." And I'm therefore at a loss to explain how an agreement to "publicly disavow," which necessarily implies more speech, is construed by some as having the effect of "abridging" speech, which means 'lessen.'

Personally, I couldn't care less whether either candidate signs the advertising agreement or not. I honestly don't think it would make much of a difference anyway. But I applaud and support Tom Basting's efforts at maintaining decorum and civility in a campaign where, given the conservative stakes articulated by Esenberg and the WMC, the discourse could very well degenerate in a hurry.

In a number of instances, it already has. Curiously, those instances seem to have emanated from supporters of Michael Gableman. So it makes one wonder what speech, exactly, the WJCIC's detractors are fearful at having "abridged." Mike Plaisted has some ideas.

* A tip o' the cheesehead to the redoubtable and ubiquitous John Foust for pointing out that the apocalyptic four are also actively involved with the Milwaukee Chapter of the Federalist Society (Warning: that last link may frighten children and small animals).

[Please visit the iT Butler/Gableman archive.]