Abortion Ads Help Drive Most Expensive Court Race in US History

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The return of an 1849 anti-abortion law has propelled so much interest in an open Wisconsin Supreme Court seat that there’s been twice as much spent on advertising than in any judicial race in US history—and the campaign still has a week and a half to go.

Over $31 million in ads have been booked in the contest between former Wisconsin Supreme Court Justice Dan Kelly and Milwaukee County Circuit Judge Janet Protasiewicz, more than doubling the $15 million record spent on one seat in Illinois and exceeding the $21 million spent on a three-seat race in Pennsylvania, said state judicial campaign finance expert Douglas Keith.

Many of the Wisconsin commercials focus on abortion, though the winner of the April 4 election also is likely to be a tie-breaker on cases involving redistricting, election law, and perhaps the state’s presidential vote.

If Kelly wins, he’ll become the pivotal justice on the seven-member court. Democrats expect him to side with the GOP-controlled Legislature over Gov. Tony Evers (D).

Spending is “explosively high because the stakes are so monstrously gigantic,” said state Democratic Chair Ben Wikler. “Wisconsin is on a knife’s edge and holds the power to sway a presidential election one way or another.”

Groups bankrolling pro-Kelly commercials have been emphasizing the word “conservative” in their spots, and state Republican Chairman Brian Schimming said the party’s backing him in the nominally non-partisan election because a loss would put “25 years of conservative reform at risk.”

A 4-3 court in December 2020 upheld Joe Biden’s victory in Wisconsin by refusing Trump’s request to toss 200,000 votes from liberal counties.

In a series of 2021 rulings, the Wisconsin Supreme Court’s conservative majority preserved state and congressional maps that favor the GOP. More recent rulings have impacted election laws, such as ballot dropboxes.

Divided Electorate

Neither party has a lock on voter sentiment. The last two presidential elections were decided by less than 1 percentage point. The state has both a Democrat (Tammy Baldwin) and a Republican (Ron Johnson) in the US Senate. And in the last 22 years, 11 statewide races were decided by roughly 30,000 or fewer votes in the state with nearly six million residents.

So far, Protasiewicz and the groups backing her have dominated the airwaves. Her campaign alone has booked roughly $12.6 million of TV and digital ads, with different messages depending on where the voters live, according to data compiled by the commercial-tracking company AdImpact. Outside groups backing Protasiewicz have spent an additional $5.4 million, giving the liberal candidate a roughly $5 million spending advantage over Kelly on booked advertisements, according to AdImpact.

In Democratic strongholds around Milwaukee and Madison, commercials by the candidate and outside groups are emphasizing Protasiewicz’s support for abortion rights and Kelly’s alignment with anti-abortion groups.

“Judge Janet Protasiewicz, she believes women should have the right to make their own decisions on abortion,” one of her campaign ads says. “Extremist Dan Kelly, he supports 1849 law that takes away a woman’s right to abortion even in cases of rape, incest and health of the mother.”

In more-rural northern counties, attack ads call Kelly corrupt for his recusal decisions and criticize his private practice representation of sexual assault defendants.

“What does it take to buy off a judge? For extremist Dan Kelly, he’s for sale for $20,000,” said a campaign ad criticizing Kelly for participating in deliberations on a political donor’s case.

More than $5.2 million in ads, such as one highlighting Protasiewicz’s sentence of no prison time for a child rapist, have been aired by Fair Courts America, a national conservative group funded by Wisconsin packaging billionaire Richard Uihlein. The biggest chunk of that spending—$1.8 million—is targeting liberal Milwaukee and neighboring counties rich with swing voters.

The third-biggest spender is Wisconsin Manufacturers & Commerce, an association that represents business interests ranging from the state’s defense contractors to insurance and finance players with names on Milwaukee pro sports stadiums. Those ads also go after Protasiewicz for some of the sentences she imposed on criminals.

“Protasiewicz set violent criminals free, again and again,” one association ad says, citing instances when she didn’t put defendants convicted of sexual assault or rape behind bars. “Tell Judge Protasiewicz to stop protecting criminals.”

The business community and conservatives are so invested in this race because a flipped court could open the door for legal challenges to a wide range of GOP-enacted laws ranging from labor laws to congressional lines, Schimming said.

“This is a way for the liberals to create essentially another legislature with four of the seven members of the court, to cancel out what a 132-member Legislature has done over the last 25 years,” he said. “If people make the decision on this race based on their records on crime or their views on criminal justice, Kelly wins. If she is successful with buying the race with out-of-state money, it’s tougher to do.”

Divisive Court Election Poised to Reshape Swing State Wisconsin

The Kelly and Protasiewicz campaigns didn’t respond to requests for comment about their ad spending, though both candidates previously answered questions about what they’re saying to voters. Kelly described the importance of “preserving the original meaning of the US and Wisconsin constitution,” while Protasiewicz said “We need to bring common sense back to the Wisconsin Supreme Court, follow our laws and uphold the constitution.”

Bang for the Bucks

Political professionals should see the contest as something of a bargain, explained Sam Wang, who directs the Princeton Gerrymandering Project.

Donors that want to influence the nation’s direction want to put their contributions “in a state that is on a knife’s edge and could determine the presidency,” he said. “That’s states like Wisconsin, Georgia, or Pennsylvania.”

“Senate races cost many tens of millions of dollars, the biggest ones cost 100s of millions of dollars,” he said. In the April 4 Wisconsin election, “what that means is that proportionally anybody’s donation is going to mean more here than in a Senate race or other kinds of races.”

Last June’s US Supreme Court Dobbs decision overturning Roe v. Wade revived Wisconsin’s 1849 ban on abortion. State Attorney General Josh Kaul’s (D) is challenging the ban in a lawsuit nearly certain to end up before a Wisconsin Supreme Court where either Kelly or Protasiewicz will be a deciding vote.

Anti-abortion group Susan B. Anthony is spending $2 million in the race, the most its ever spent on a state Supreme Court race, Kelsey Pritchard, their Director of State Public Affairs, said in an email.

Wisconsin Right to Life Legislative Director Gracie Skogman declined to share her group’s investment but said it was “by far the most significant grass roots effort” in her organization’s history.

“We firmly believe our strongest asset as a pro-life movement is that we have a grassroots network in every corner of the state,” she said. “We have college students, and chapters and church groups that can all activate to educate the broader republic on this election.”

Wisconsin Voters Set Up Abortion Clash in Supreme Court Contest

Planned Parenthood is spending more than $1 million on the race, and the American Civil Liberties Union is also spending around $900,000, said J.J. Straight, the Deputy Director of the ACLU’s Liberty Division.

“The very right to access an abortion could and will rest at this state Supreme Court,” she said. “It’s often confusing for voters to even understand what the state Supreme Court does, so we’re having to work on that education.”

Abortion’s also mentioned in an ad by an organization created to champion background checks and other gun control measures. A $500,000 ad buy from the group Everytown for Gun Safety says, “Daniel Kelly worked for a radical anti-abortion group and on the court he could uphold Wisconsin’s abortion ban.”

Everytown for Gun Safety is backed by Michael Bloomberg, the majority owner of Bloomberg Government’s parent company.

“This race is illustrative of the fact that we are in a new era for state Supreme Court elections,” said Keith, counsel in the Brennan Center for Justice’s judiciary program. “There’s going to be more attention and money in these races than ever before, and that is a direct result of US Supreme Court decisions in Dobbs, partisan gerrymandering and other issues that have left state high courts to decide some of the highest profile legal questions.”

To contact the reporter on this story: Alex Ebert in Madison, Wisconsin at aebert@bloombergindustry.com

To contact the editors responsible for this story: Andrew Childers at achilders@bloomberglaw.com; Katherine Rizzo at krizzo@bgov.com; Bennett Roth at broth@bgov.com

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