In the Belly of the Beasts

UPDATED BELOW

After blowing $22.50 I’ll never see again so I could review Charlie Sykes’ incredibly inconsequential (and now, I'm sure, remaindered) 50 Rules pamphlet last year, I hesitated before throwing more good money after bad to attend a Federalist Society panel over a lunch hour earlier this week. As it was, the $10 I tossed in the right-wing collection plate probably didn’t even cover the wedding-reception style lunch provided at the posh Milwaukee Athletic Club. So, I figure I’m at least $2.50 ahead – and that’s not even counting the five extra brownies I stuffed in the pockets of my blazer (Steal This Dessert!).

But, still...Lunch on the Right Wing...I have to say it was a bit chilly in the room, and I don’t mean temperature. A small and quiet group of about 40 or so well-heeled business lawyers gathered quietly around the banquet tables. Like a bad wedding reception, I looked for the table-of-least-resistance and found it several paces away from the power-suits. I tried to strike up a conversation with a couple of young lawyers from a business firm...never got much beyond whether the salad dressing was ranch or bleu cheese (it was ranch). I almost slipped and asked if they were friends of the bride or the groom, but I caught myself.

The subject was "Judicial Elections and Free Speech", focusing on the work of the State Bar’s Wisconsin Judicial Campaign Integrity Committee, which is either the bane of the Federalist Society/WMC/Gableman existence or simply a convenient straw-man. On the panel were a couple of out-of-state speakers and the local right-wing’s favorite first-year law professor, Rick Esenberg (who I walked over to say hi to – did I mention it was a little chilly in the room?)

First to speak was James Bopp, a right-wing lawyer from Indiana – sort of a poor-man’s Ted Olson. Bopp is the kind of overheated zealot who calls the opposition "the Democrat party". He has run some right-wing impact litigation that has had the effect of making it easier for the monied interests to dominate elections, such as the recent case that knocked out some of the McCain-Feingold reforms in favor of Wisconsin’s Right to Life's "right" to poison the political atmosphere to their dark heart's content. Bopp’s dour, angry, we-are-victims delivery was a big hit with those in the room drinking the kool-aid disguised as iced tea (I stuck to the water, just in case).

Bopp’s subject was, of course, the dastardly work of the WJCIC. Starting with a defense of an elected judiciary (because people are not interested in "liberal judicial activists") and a review of last year’s WMC triumphant installation of the ethicly-challenged Annette Zeigler (one key to the result: "sufficient funds to get message out". Ah, those sufficient funds...), Bopp announced that he had divined the true reason for the creation of the WJCIC. The "supporters of judicial activism" created the committee to "change the debate," he claimed. The members of the committee "condemn not the judges who decide cases in a predetermined manner, but those who say the judges decide cases in a predetermined manner."

Well, that’s not what they did or do, but so what if they did? It’s just a damn ad-hoc committee of the State Bar, fer cryin’ out loud. But the brilliant legal mind of James Bopp, Jr. has also figured something else out I bet you didn’t know – the work of the committee is being done "by the government!" The State Bar is a "quasi-public agency" declared Bopp, which I’m sure comes as a surprise to everyone in the state of Wisconsin. You’d expect this kind of amateur mistake to be made by a too-willing-to-please law student, but not by a grown-up like Bopp – not to mention Esenberg, who at least is from here and repeated the baseless claim. You would also expect that, if you really think a "state agency" was trying to illegally restrict free speech and you are a hot-headed professional trouble-maker, the remedy is easy – you sue ‘em.

But Bopp knows the State Bar is not a public agency, quasi or otherwise. Maybe he even tried to draft the complaint and fell down laughing when he tried to define the defendant as a state agency. That certainly would have been the reaction of any judge who saw such nonsense in print. In my only contribution to the program, I laughed out loud when he said it the second time. Did I mention it was chilly in the room? Did I mention these right-wing suits showed no signs of having a sense of humor?

After blathering on for another five minutes about how State Bar President Tom Basting said something to the Wisconsin Law Journal one day, when an e-mail "written at his direction" may or may not have indicated something else six days before ("Six days before!" exclaimed Bopp), he was finally done.

The next speaker, James Sample of the Brennan Center at NYU Law School, came out swinging and absolutely devastated the phony arguments and premises of the anti-WJCIC campaign. Since there was no one on the panel officially designated as defending the WJCIC, I figured maybe the other national speaker would just be another Federalist Society stooge, but I was pleasantly surprised when Sample accused the group of trying to swift-boat the State Bar committee in his first sentence. "Those attempting to swiftboat the WJCIC are the outsiders," he said to stunned silence. He rightfully claimed that the committee serves an honorable end, as such committees do throughout the country.

Sample had a remarkable set of facts to back up his argument. For instance, in a survey of 2,300 judges nationwide, 77% approved of independent committees to monitor judicial campaigns. The same committees were favored by 87% of the general public. He highlighted nightmare stories in four states – including, of course, Justice Zeilger’s refusal to recuse herself in a case involving her WMC benefactors; said that business groups make up 90% of independent spending in judicial races across the country. He cited statistics that showed judges finding for plaintiffs and defendants in direct confluence with their most recent contributions. "The donation, not policy, controls," he said.

Sample hit the nail on the head of the motivation of those in the room and the methods they use to try to get unfair advantage in judicial races. First, they seek to make judicial races like legislative and executive races – in other words, anything goes. They also have "deep-pocketed help" (no kidding) and represent "narrow interests". Finally, they seek to reduce complex questions to simple (and false) agree/disagree dynamics (like "judicial activist" v. "traditionalist").

Finally, he said that John Grisham got the system exactly right in his latest book The Appeal. I haven’t read it, but apparently in the fictional novel, the CEO of a company buys a judicial race for half the price of an expensive trinket for his wife. Money well spent for him, trouble for the rest of us. Those people like the WMC get an "individualized return on their investment." It is a sad state of affairs, being played out in the Butler/Gableman race in broad daylight. The answer, Sample suggested, is public financing of judicial elections.

By the time Esenberg got up, it was already 1:30 and I was late for court (don’t these business lawyers have anything better to do in the afternoon? What, is there still snow on the golf courses?). I stuck around long enough to figure that he wasn’t going to say anything he hasn’t said on his blog – a kinder, gentler version of the Bopp/WMC message. "There is something special about judicial elections..." Gee, ya think, Rick? "We should not drive substance out of judicial campaigns...there is a right and a wrong way to do it." Well, do tell, professor.

Maybe he got to what the wrong way is (I would hope by just playing his WMC video), but I had to go. The panel members were going to question each other and allow questions from the tables, and I would have loved to see Sample mix it up with Bopp. All I know is: the WJCIC escaped the day unscathed, the anti-Butler forces are starting to seem a little desperate, and those Federalist Society brownies are dee-licious.

UPDATE: Daniel Suhr, Rick Esenberg's research assistant who has been spending much of his time researching legal issues that just happen to be favorable to the Federalist Society/WMC/Gableman forces, was good enough to post a comment below with a link to his latest post, claiming to establish through legal research that the State Bar is a "state agency". Although I wasn't planning on doing any heavy legal research this afternoon, I guess I asked for it.

I have looked the cases he cites. There are two kinds of cases -- those having to do with mandatory bar dues and those having to do with sovereign immunity (having to do with whether the State Bar can be sued in federal court when doing things they are required to do by the State Supreme Court -- if the Bar is acting as an arm of the Court, it can't be). I want to be careful and accurate in addressing Suhr's analysis and reserve the right to expand on this later, but it seems to me that both instances are fairly limited to their facts and that the courts (the language of the 48-year-old Lathrop case notwithstanding) reached their conclusions based on the fact that the State Bar was an "'arm' or 'alter ego' of the state", as opposed to an actual state agency, a phrase not used that I can see in Theil (and not necessary for a finding of immunity). From Theil:

• "Given these considerations, we held in Crosetto that the effect on the state treasury was the least important of the three factors, and would be irrelevant if the first two weigh in favor of Eleventh Amendment immunity. 12 F.3d at 1402. The other two factors are: (1) The extent of control the Wisconsin Supreme Court exercised over the Bar; and (2) whether the Bar acted as the agent of the Wisconsin Supreme Court when it promulgated the rule in question." [Emphasis added]

Bottom line: Good work by Suhr in pointing out that the courts have recognized that the Bar acts on behalf of the state when the Supreme Court requires it (such as enforcing mandatory dues, which is a Supreme Court rule, not a State Bar rule). But the courts in all these cases also recognize the State Bar's completely independent funding and the other duties -- such as education of the public and lobbying -- that the Bar takes on its own. An "arm" of the State in some functions required by the Supreme Court? Yes. A state agency, quasi or otherwise? Not nearly. Since the ad-hoc WJCIC is not related to any direction by the Supreme Court, the Bar does not act as an arm of the state in any way when it advocates for a clean judicial election. My chuckle at Bopp's heated rhetoric stands.

Reserving the right to revise and extend my remarks...have a nice weekend.