Plain Talk: WMC can thank an 'activist' court

Dave Zweifel  —  7/02/2008 8:16 am

Jim Pugh, the hardball mouthpiece for Wisconsin Manufacturers & Commerce, called me the other day to complain about a recent column in which I remarked that WMC had "aided and abetted" the borderline-racist campaign of soon-to-be Supreme Court Justice Michael Gableman.

Pugh insisted that none of the ads purchased by WMC was anywhere near racist and that the "Loophole Louie" label they tagged on Supreme Court Justice Louis Butler was simply good-natured ribbing of the African-American justice who on occasion has referred to himself with that catchy moniker.

If any of the pro-Gableman ads bordered on being racist, they weren't bought and paid for by WMC, Pugh admonished me.

Well, I never wrote that WMC's ads were racist, but that the state's leading big business consortium had backed without reservation the candidate whose own ads implied -- falsely, I might add -- that the state's first black high court justice let rapists, who also happened to be black, out of prison to prey on society. Gableman's ads were a shameless appeal to bigotry. If spending 2 million bucks to back this guy and his Willie Horton-like campaign isn't aiding and abetting him, I told Pugh, then I don't know what is.

Pugh and his WMC cohorts continue to peddle the line that Gableman won because the state's voters wanted to replace an "activist" justice with a "traditionalist," one who wouldn't "legislate from the bench."

The WMC spokesman said what was particularly upsetting to the WMC honchos was the decision Butler authored on lead paint liability in which the court declared that a minor who suffered brain damage from lead paint didn't have to prove which company manufactured the paint.

That was clearly writing legislation from the bench, Pugh insisted, which he said sent a message to corporations throughout the country that Wisconsin is a bad place to do business.

Never mind that WMC's predictions that trial lawyers would descend on Wisconsin to willy-nilly sue paint companies hasn't occurred in the three years since and that the young man who was the subject of Butler's decision was never awarded a dime by the jury that eventually heard the case.

But this "traditionalist" versus "activist" debate has reached the point of absurdity. The labels almost always boil down to whose side the special interest is on. If the court rules in WMC's favor, for example, it's a traditional ruling. If it rules against, then obviously the justices are activists.

I asked Pugh, for instance, would WMC like the U.S. Supreme Court to revisit its decisions that declared corporations to have the same First Amendment and other rights afforded to individual citizens?

If ever there was a case of judicial activism, it was the 1886 ruling declaring that the 14th Amendment to the Constitution, which provided citizenship to black slaves who were liberated by the Civil War, also applied to corporations even though the amendment speaks to absolutely no one but "all persons born or naturalized in the United States." That decision declared that corporations and individuals could not be taxed differently and subsequent decisions through the years eventually made corporations the equivalent of fresh and blood American citizens.

That's why it's so difficult to place restrictions on the corporate spending that unfairly tilts the playing field in election campaigns in favor of those with the most money. Corporations get the same protections of free speech as every U.S. citizen. Where, one may ask, is that found in the Constitution?

That kind of activism is just fine with groups like WMC. As a result of their free speech rights, they and their money can drown out the voices of individual Americans.

Pugh did confirm that WMC will be looking closely at the court race next spring, when Chief Justice Shirley Abrahamson will be up for re-election. She's more activist than Butler, he said.

So fasten your seat belts for another campaign stuffed with WMC money for whichever "traditionalist" candidate they can recruit to run against the chief justice. It will be another campaign all made possible by an "activist" U.S. Supreme Court years ago.

Dave Zweifel is editor emeritus of The Capital Times.

Dave Zweifel  —  7/02/2008 8:16 am