In Wisconsin Supreme Court race, outside ad spending for Kelly ekes past Protasiewicz

A week before the April 4 election, campaign advertisement spending by electioneering groups to boost Wisconsin Supreme Court candidate Daniel Kelly outpaced spending for opponent Janet Protasiewicz.

Wisconsin Watch

March 29, 2023

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Daniel Kelly  is seen in profile from his left, with Janet Protasiewicz in the background (and out of focus).

Former Wisconsin Supreme Court Justice Daniel Kelly debates Milwaukee County Circuit Judge Janet Protasiewicz at the State Bar of Wisconsin in Madison on March 21, 2023. The two are vying for a 10-year term, with the winner determining the ideological balance on the seven-member court. Spending in the race has already topped $20 million, making it the most expensive judicial race in U.S. history. (Credit: Joey Prestley for Wisconsin Watch)

Wisconsin Watch

By Phoebe Petrovic, Wisconsin Watch

As the April 4 election nears, liberal Janet Protasiewicz’s campaign has raised nearly $12 million more than conservative Daniel Kelly’s, according to the Wisconsin Democracy Campaign.

But as of March 27, Kelly’s allies lead in ad spending, with outside groups spending about $2 million more to support him or oppose her.

The consequential election will determine whether Wisconsin’s high court preserves its 4-3 conservative majority or flips to liberal control. In February, the contest became the most expensive court race in U.S. history. The Democracy Campaign estimates today it stands at $39.7 million.

A data analysis by Wisconsin Watch of political ads in the first half of the general election race found ads favoring Protasiewicz dominated television and social media, outnumbering those favoring Kelly 23-to-1.

Reviewing 440 ads from Feb. 22 to March 14 tracked by WisPolitics’ Ad Watch — which ran on television, radio and digital — and Facebook and Instagram ads from Meta’s ad library, Wisconsin Watch found that 91% of the ads boosted Protasiewicz.

While it’s difficult to gauge the impact of television ads without insight into how often they’re airing, which is not publicly available, Wisconsin Watch’s analysis illuminates each camp’s priorities.

“There seems to be an intense interest on the ideological left, especially among various pro-choice groups, to focus on this race,” said Michael Wagner, who studies elections and media at University of Wisconsin-Madison.

Ads supporting Protasiewicz have emphasized the candidate’s stance on specific issues, including abortion and redistricting, which could come before the court.

“These are issues that benefit liberals, for sure, but also have a broader coalition of support” among Republicans, Wagner said. Polling shows a majority of Republicans favor redistricting reform, and about a third opposed the Supreme Court decision overturning abortion rights.

The ads supporting Kelly or knocking Protasiewicz largely featured descriptions of his values, such as “constitutional conservatism,” or portray Protasiewicz as “soft on crime.” That’s the message of two television ads issued by the Kelly campaign and the conservative WMC Issues Mobilization Council that came out in the days after Wisconsin Watch’s analysis.

And a new ad circulated by Kelly’s campaign is drawing comparisons to the notorious “Willie Horton” ad from 1988 that helped boost George H.W. Bush over Michael Dukakis for the presidency.

Patience Roggensack sits in a chair behind a judicial bench and listens with two other justices seated on either side of her, in a room with marble walls.

Wisconsin Supreme Court Justice Patience Roggensack hears arguments in a case on Dec. 1, 2022. Conservative former Wisconsin Supreme Court Justice Daniel Kelly and liberal Milwaukee County Circuit Judge Janet Protasiewicz are running in the April 4, 2023 election to replace Roggensack, a conservative, who is retiring. The outcome of the race could upend the current court’s 4-3 conservative advantage. (Credit: Coburn Dukehart / Wisconsin Watch)

In addition to the candidates’ campaigns and parties, at least 23 electioneering groups purchased Meta, television, radio or digital ads in the first three weeks of the general race.

These include political action committees (PACs), such as the Koch brothers’ conservative Americans for Prosperity, and advocacy organizations including the left-leaning American Civil Liberties Union.

Not all have registered with the Wisconsin Elections Commission or filed reports on their expenditures, owing to an exemption in state law that allows out-of-state PACs to avoid reporting their activity in Wisconsin if it makes up less than 50% of their overall spending in a year.

So-called “issue ad” groups such as WMC Issues Mobilization Council — that do not expressly advocate for the election or defeat of a candidate — also are not required to register or report their spending to the state.

44% of ads examined discuss abortion rights

The Wisconsin Supreme Court has the potential to restore abortion rights if it hears a challenge to the state’s 1849 near-total abortion ban — a fact that nearly half the ads supporting Protasiewicz emphasized. Mentions of abortion surpassed the second-most popular topic by about 4-to-1.

In an unusual move, Protasiewicz has made her pro-abortion rights position explicit. Two television ads from her campaign announce: “She believes women should have the freedom to make their own decisions on abortion.”

The majority of Wisconsinites believe abortion should be legal in all or most cases.

“Ten, 20, 30 years ago, we would not have seen this kind of thing as much,” Wagner said. Judicial campaign ads “would have been much more about judicial philosophy, performance on the bench.”

Protasiewicz believes “people deserve to know” if a candidate “believes women should have the freedom to make decisions over their health care” or “that we should protect our democracy,” said campaign spokesperson Sam Roecker.

A still image from a video shows Janet Protasiewicz sitting at a judicial dais with the words "Janet Protasiewicz," "Wisconsin Supreme Court" and "Abortion Rights."

Milwaukee County Circuit Judge Janet Protasiewicz has highlighted her support for abortion rights, including in an ad paid for by her campaign. Protasiewicz is running for a 10-year term on the Wisconsin Supreme Court against former Justice Daniel Kelly on April 4, 2023. (Credit: Janet for Justice campaign / YouTube)

Liberal groups outside of Wisconsin have plastered Facebook and Instagram with ads about abortion rights. Tech for Campaigns, which deploys volunteers to support progressive candidates, paid for 148 Meta ads. Indivisible Action, a PAC supporting progressive candidates, discussed abortion in 47 of its 51 Meta ads released in the three weeks before March 14.

Kelly and his supporters, meanwhile, hardly touch the topic. Just two identical digital ads tout his endorsements from Wisconsin’s three anti-abortion advocacy groups.

His campaign shot back at a Protasiewicz ad claiming the former justice supports the state’s controversial 19th-century law, saying on his website that he “does not discuss his views on abortion” and would “set aside whatever his personal opinions might be.”

But he did discuss his anti-abortion views on his personal blog in 2012, saying groups supporting abortion rights promote “sexual libertinism.” And one of the groups endorsing Kelly states: “We proudly endorse these candidates who recognize the personhood of the preborn baby and hold the principled and compassionate no-exceptions pro-life position” — meaning no exceptions for rape, incest or medical emergency.

On March 21, Kelly appeared at an event featuring an anti-abortion rights pastor who has described killing physicians who provide abortions as “justifiable homicide,” the Milwaukee Journal Sentinel reports.

Kelly’s campaign did not respond to questions about the themes of ads supporting his candidacy.

Redistricting, democracy looms large

Progressives also consider a host of pro-democracy issues at stake, which collectively accounted for about one-third of ads boosting Protasiewicz or attacking Kelly. In December 2020, the conservative-dominated state Supreme Court rejected former President Donald Trump’s attempt to overturn the election results by just one vote, with conservative justice Brian Hagedorn voting with the liberals.

Between Feb. 22 and March 14, pro-democracy themes featured in 12% of ads reviewed, the second highest after abortion. All of these ads came from Protasiewicz or her supporters, primarily Indivisible Action, the Democratic Party of Wisconsin and the Women’s March, in order of number of ads.

Women’s March — weighing in on Wisconsin politics for the first time — pronounced: “This election could determine the Court’s balance of power and democracy in Wisconsin (and America) for years to come in terms of abortion rights, voting rights and unfair gerrymandering.”

Wisconsin has one of the most extreme partisan gerrymanders in the country. Redistricting appeared in 10% of political ads and voting rights appeared in 8%.

Those supporting Protasiewicz tie Kelly to Trump’s attempt to overturn the 2020 election results. “In Wisconsin, extremist Dan Kelly was the right-wing lawyer behind the scenes of it all,” a television ad from the Protasiewicz campaign claims.

A still image from a video shows the face of Daniel Kelly, images of other people and the words "Extremist Dan Kelly" and "Right-Wing Lawyer."

Wisconsin Supreme Court candidate and former Justice Daniel Kelly is painted as an “extremist” by the campaign of his opponent, Janet Protasiewicz, a Milwaukee County Circuit Court judge. The ad cites Kelly’s work as a legal adviser to the Republican Party of Wisconsin at a time when the GOP was planning to cast Wisconsin’s 10 Electoral College votes for Donald Trump, even though Trump had lost Wisconsin to Joe Biden. (Credit: Janet for Justice campaign / YouTube)

The Milwaukee Journal Sentinel reported that Kelly received nearly $120,000 in payments from the state GOP and Republican National Committee to advise on election issues, including the failed fake elector scheme that attempted to subvert the will of Wisconsin voters. Kelly and GOP attorney Joe Olson had “pretty extensive conversations” with former state Republican Party Chairman Andrew Hitt about the plan, Hitt said in a congressional deposition.

When Protasiewicz raised this at the March 21 debate, Kelly accused her of “lying,” saying that Hitt testified to having extensive conversation with “attorneys plural.”

“His testimony was also that he had one conversation with me, 30 minutes, in which he asked me if I was ‘in the loop’ on the alternative electors slate. I told him I wasn’t because I wasn’t and that was the end of the matter,” Kelly said.

But Kelly’s campaign did not dispute the Journal Sentinel‘s reporting, responding, “Justice Kelly believes Joe Biden is the duly elected president of the United States.”

The same Protasiewicz ad highlights Kelly’s participation in an “election integrity” tour in the summer of 2022. The ad claims the tour “promoted the Big Lie” that the election was stolen at events closed to the press.

At the March 21 debate, Kelly countered that, too: “My client at the time asked me to address various groups around the state about how our election system works, and I was happy to do that.”

Kelly ads hit Protasiewicz sentencing

None of the ads from Kelly and his supporters up to March 14 — nor the two television ads launched after Wisconsin Watch’s analysis — discussed democracy, redistricting or voting rights. “I don’t talk about my politics,” he said at the March 21 debate. “I understand what the court is supposed to do, and that’s resolving legal questions.”

Ads supporting Kelly contain traditional themes of judicial campaigns. Kelly is the “PROVEN CONSTITUTIONAL CONSERVATIVE” Wisconsin needs, say four digital ads from Kelly’s official campaign.

A still image from a video shows Janet Protasiewicz and two mug shots on either side of the words "Stop Protecting Criminals" with small print at the bottom identifying the source of the ad.

A video ad from WMC Issues Mobilization Council criticizes Milwaukee County Circuit Judge Janet Protasiewicz for sentencing some defendants to more lenient sentences than those requested by prosecutors. Early ad spending in the Wisconsin Supreme Court race favored Protasiewicz, but outside groups have invested heavily in ads favoring her opponent, former Justice Daniel Kelly, giving him the edge in ad spending as the April 4, 2023 election nears. (Credit: WMC Issues Mobilization Council / YouTube)

Most ads attacking Protasiewicz criticize specific sentences to portray her as soft on crime. That’s the message of all four television attack ads against Protasiewicz that Wisconsin Watch reviewed. They were paid for by Kelly’s campaign, GOP megadonor Richard Uihlein’s Fair Courts America PAC and the conservative group WMC Issues Mobilization Council.

The cases they criticize include that of a man who pleaded guilty to third-degree sexual assault and child enticement, both felonies. Although the man faced up to 35 years in prison, Protasiewicz gave him four years of probation and credited him for over one-year in jail, reports the Milwaukee Journal Sentinel.

One striking video ad from Kelly’s campaign has an unmistakable resemblance to the infamously racist “Willie Horton” ad from George H.W. Bush’s 1988 campaign. The ad, posted to Twitter, was not in Wisconsin Watch’s dataset. Save for a mugshot of the defendant, the ad is “basically a shot-for-shot remake,” replete with the blue background, white text and retro voice-over, Wagner said.

A still image from a video shows portraits of George H.W. Bush and Michael Dukakis along with the words "Bush & Dukakis" and "On Crime."

One video ad posted on Twitter by former Justice Daniel Kelly’s campaign for Wisconsin Supreme Court has an unmistakable resemblance to the infamously racist “Willie Horton ad” from George H.W. Bush’s 1988 campaign. (Credit: George H.W. Bush 1988 campaign / YouTube)

A still image from a video shows portraits of Daniel Kelly and Janet Protasiewicz along with the words "Daniel Kelly & Janet Protasiewicz" and "On Crime."

Save for a mugshot of the defendant, a video ad released by the campaign of Daniel Kelly is “basically a shot-for-shot remake” of the 1988 “Willie Horton ad” released by the George H.W. Bush presidential campaign, replete with the blue background, white text and retro voice-over, says Michael Wagner, who studies elections and media at the University of Wisconsin-Madison. (Credit: Friends of Justice Daniel Kelly)

Ben Voelkel, a Kelly adviser, said by email: “The people of Wisconsin need to know the truth about Janet Protasiewicz’s soft-on-crime record and unreliable lack of judgment.” Kelly’s campaign did not respond to a request for comment about the ad.

Said Wagner: “To me, it’s a sign, actually, of just how partisan and ugly these races have become.”

At the March 21 debate, Protasiewicz called the ads attacking her sentencing “unfair,” describing them as a “handful of cases (that) have been cherry picked and selected and twisted.”

In the three weeks leading up to March 14, invocations of the Constitution appear most often in ads boosting Kelly, mentioned 29% of the time, followed by crime and safety at 24%. In 20% of the ads, Kelly is characterized as fair and impartial, including in two digital ads from the Kochs’ Americans for Prosperity.

Protasiewicz ads claim Kelly is ‘corrupt’

Protasiewicz’s camp has attacked that image of impartiality in two television ads, which Kelly called “slanderous” at a Milwaukee Press Club event. One criticized Kelly’s role in ruling in favor of the Wisconsin Institute for Law and Liberty six times while receiving donations from WILL board members. Kelly’s campaign said he “didn’t start fundraising” until afterwards, “so any campaign donations couldn’t have possibly influenced decisions in those cases.”

But a Wisconsin Watch review of the cases and Kelly campaign finance reports contradict that claim. WILL board member Michael W. Grebe donated $1,000 to Kelly on June 17, 2019, eight days before the Supreme Court ruled in favor of one of WILL’s clients. Kelly’s campaign ignored a question about this.

Yet, as WILL points out, all of that is legal. Wisconsin’s Supreme Court has lax recusal rules that do not require justices to remove themselves from cases involving campaign contributors. The rules were written by the Wisconsin Manufacturers & Commerce and the Wisconsin Realtors Association.

At the March 21 debate, Protasiewicz reiterated she would recuse herself from cases in which the Democratic Party, which has contributed to her campaign, is a party. Kelly did not say he would recuse himself from cases involving his contributors, saying that the court’s job “insulates it from the effects of anyone’s outside interest.”

The nonprofit Wisconsin Watch collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

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