"If You Ran on That, You Would Win"
Liberals should defend the courts and fight oligarchy by eliminating the kind of election they just won in Wisconsin
Disclaimer: the views expressed in this article belong solely to the author, who is writing in his individual, personal capacity. This article does not reflect, and should not be construed to reflect, the official position of any federal department or agency, to include the Department of Defense.
(Preview photo AP/Jeffrey Phelps)
Democrats are jubilant about liberal jurist Susan Crawford handily defeating conservative jurist Brad Schmiel in the Wisconsin judicial election a few weeks ago. To the extent their ten point victory in a state President Trump won half a year ago signals the shifting mood of the country, they have reason to be. Voters in all 72 counties of the state shifted blue. Democrats fanned out across the cable TV and social media ecosystem to dunk on Elon Musk, Trump, and Republicans (which feels great no matter what else I argue in this piece). But by focusing only on how this election is a bellweather for anti-Trump sentiment, they’re missing an opportunity to advance two other priorities salient to voters’ concerns at this particular moment: curbing the pernicious effects of money in politics and shoring up the legitimacy of our courts.
Hold your nose to avoid breathing in the putrid stench of this sentence: “Democrats will claim a Supreme Court seat in a battleground state after winning the most expensive judicial election in United States history.” While the election was supposedly nonpartisan, the two major parties mobilized their machinery to support the liberal and conservative candidates vying for the seat. The seat itself is on the state’s Supreme Court, a judicial body vested with great authority, which it ostensibly exercises with fealty only to the law and justice, not party. The state is one of only seven states that actually seem to matter in national elections, and thus has seen all of its local races usurped by national-level discourse. And the election attracted over $100 million in spending from state and national parties, opaque interest group donations, and billionaires. That doubles the amount spent on the previous record-setting judicial election: Wisconsin’s Supreme Court race in 2023. This is a darkly ironic trend for a state that as recently as 2009 passed a bill—later repealed by state Republicans—to institute public financing of elections.
One rosy way of interpreting this election result is that money actually doesn’t matter in elections if voters are fired up enough. But this is a mistake. The zero-sum nature of first-past-the-post elections means expenditures are inflationary; when one party spends big, it only incentivizes the other side to match that spending in kind. And while many donations came from small-dollar voters, the inflationary principle means those small-dollar pissing matches only incentivize corporate oligarchs, many of whom launder their contributions through political action committees, to turn on their firehoses of cash. That’s precisely what happened in the Wisconsin judicial election. Musk poured in $3 million of his own money and $19 million through groups he supports, and even offered $1 million to three individual voters. And while his spending and antics justifiably drew most of the press’s coverage, liberal big hitters also entered the game: George Soros and other liberal donors, including the billionaire Democratic governor of a neighboring state, countered with millions of their own. While Crawford’s campaign spent $22 million compared to Schmiel’s $10.4 million, PACs and nonprofits boosted Schmiel with $35.5 million in virtually untraceable money compared to “just” $13.5 million for Crawford, according to the Brennan Center for Justice.
Democrats should indeed tout their victory as a sign of the electorate’s anger at the current administration. But they should also tie this election to the electorate’s palpable anger at elites, particularly the billionaire class—for whom Musk is a cartoonish mascot—who use their wealth to exert undue influence over so many aspects of our lives in order to maintain their oligarchy.
Back in March, I attended a town hall hosted by my congressman, Rep. Glenn Ivey (D-MD04). The crowd of about hundred and fifty people was…chippy. Particularly so because this was mere days after Majority Leader Schumer caved and supported the Republicans’ continuing resolution. Rep. Ivey was feeling himself after spending the first twenty minutes or so playing the hits everyone wanted to hear (“Trump and Musk are a menace, we need to fight for federal workers,” etc.) and, notably, beating up on Schumer. But during the very pointed Q&A session that followed, both Ivey and the audience noticed the vibe shift. His constituents were not only ripshit, but grew even more frustrated with Ivey’s cool demeanor, his “what are ya gotta do, we lost” attitude, and his myopic focus on winning in 2026 rather than urgently employing non-conventional tactics (fuzzy though they are) to confront a lawless administration now. About an hour into this tense scene, a constituent asked Rep. Ivey if he believed Democrats were “complicit” in the campaign finance boondoggle by accepting corporate and PAC money. Rep. Ivey gave a rather pedantic response distinguishing between direct contributions to candidates and independent expenditures before dutifully bemoaning Citizens United: “I disagree with the ruling, but it’s the law of the land.” In addition to groans, this answer elicited a passionate and animated interjection from a man in the audience who urged Ivey to change the law. When Ivey wryly responded, “You’d need a constitutional amendment to do that,” the man, unbowed, earned some of the biggest cheers of the night when he yelled back, “GET MONEY OUT OF POLITICS—IF YOU RAN ON THAT, YOU WOULD WIN, HANDS DOWN!”
With oligarchs firmly entrenched in and at the controls of the federal government, it has never been a more opportune time to exploit the American public’s disgust at the obscene amount of their money in our elections. Democrats should incorporate billionaire election spending into their broader messaging about Republican corruption and fighting oligarchy. But to be credible in their critique, they need to forgo their own megadonors’ money, including the vast amounts of money Democrats receive from interests groups. Unilaterally disarming is frightening, but Wisconsin proved you can win even when you’re outspent.
But that isn’t the only opportunity presented by this election for those who care about responsive, transparent, and honest government. It is more critical than ever to preserve the legitimacy of the judiciary by shoring up its independence from partisan impulse, and the appearance of the same.
The founders’ system of competing checks and balances to rein in corruption and abrogation of power to the executive has unraveled. We no longer have a system of institutional checks and balances, but one of partisan counter-forces. Congress only checks the power of the President if he is of the opposite party, as the current Congress has demonstrated. The courts, it seems, remain the last bulwark against authoritarianism and corruption. The reasons for continued judicial independence in the face of sheer capitulation by elected members of Congress should be obvious. Federal judges don’t stand election and therefore aren’t beholden to the political whims of the electorate, or more pointedly, of billionaires trying to buy them (there are, of course, some exceptions). Moreover, while it’s easier for politicos to duck and hide from the cameras when it comes time to explain purely partisan, nonsensical bullshit, judges for the most part must actually grapple with the law, explain themselves in reasoned opinions, and adhere to the code of conduct of a self-governing profession. This isn’t to say every appointed judge is a bodhisatva free from political influence or partisan impulse, or that every elected judge is a hack. But one can make a credible claim that the courts remain the last venue in government in which truth and evidence trump (in a word) craven dishonesty employed for political ends.
But the judicial bulwark is eroding. And as federal judges are targeted by authoritarians fed up with those judges’ insistence on upholding the law, state courts will play an even more important role. Furthermore, the more the courts must intervene to uphold the rule of law, the more politicized they become (a phenomenon I wrote about in the context of military lawyers). Americans’ waning trust in the judiciary is well-documented, and it’s in no small part due to the Supreme Court issuing sharply divided rulings on flashpoint issues, abusing the shadow docket, and refusing to adhere to an enforceable code of ethics. The average American doesn’t distinguish between appointed and elected judges, or between the federal and state judiciaries. When elected judges spend weeks and months attacking political opponents in a hotly contested election that falls along partisan lines then feign neutrality and impartiality in the cases they hear, the public rightly feels condescended to (to say nothing of the parties actually litigating cases before these jurists). This would be true even if these elections were publicly funded; it’s undoubtedly exacerbated when they’re privately funded by shady billionaires (especially when one of them is a goddamn Nazi hellbent on destroying the federal government).
The Wisconsin Supreme Court election was billed as a must-win for Wisconsin Democrats. But liberals who insist on the continued independence of the judiciary in the face of growing authoritarianism should also insist on the end of partisan and supposedly nonpartisan judicial elections—which still occur a distressing number of states—in favor of gubernatorial or independent commission appointments. In a paper I wrote in law school entitled “Sacrificing Direct Democracy for Greater Prosecutorial Accountability,” I argued for the end to prosecutorial elections. Many of the arguments apply to judicial elections, too:
A prosecutor is a barred attorney who is tasked with enforcing the law and administering justice in a specialized legal environment. Choosing the best candidate for this position accordingly requires specialized knowledge and information about the position itself[.] While prosecutors ought to be held accountable to the people, a body that possesses the specialized knowledge and information necessary to choosing a prosecutor should also play a role in this process. Governors are likely to have at their disposal the means to process advanced criminal justice statistics while balancing nuanced enforcement priorities in appointing prosecutors in local jurisdictions across the state. Moving away from popular elections would remove prosecutors from the crucible of public scrutiny in which they are forced to defend what are often nuanced exercises of discretion but would still require prosecutors to answer to an elected official or body whose own judgment is subject to this scrutiny. Adding this degree of separation would—assuming those with appointment power would consider better metrics than the electorate historically has—create better conditions for the selection of prosecutors and lead to the better and more efficient administration of justice.
To see just how badly judicial elections can poison the well of public trust and breed cynicism, look no further than what’s happened in North Carolina. After a liberal Supreme Court justice won reelection by a mere 734 votes, her conservative challenger petitioned the state Supreme Court—yes, the very same body on which he sought a seat—to order roughly 65,000 voters (mostly in Democratic precincts, of course) to re-certify their eligibility to vote based on bunk. This means a sitting Supreme Court justice (after recusing from the matter) petitioned the court she sits on to overrule a state appeals court order requiring tens of thousands of people to verify their eligibility to vote within 15 days or be disenfranchised. From the New York Times:
The case, over a seat on the very same Supreme Court, has tested the boundaries of post-election litigation and drawn criticism from democracy watchdog groups, liberals and even some conservatives across the state, who worry about a dangerous precedent being set. Though the court protected the largest category of voters whose eligibility was being challenged, the number of ballots that remain in question exceeds the slim margin by which the Democratic incumbent won.
How can this possibly engender trust and legitimacy in the judiciary? Shit like this only makes it easier for authoritarians to ignore court rulings like the Trump Administration is already doing. Or worse, authoritarians and their wealthy enablers can simply buy judicial power to give their unlawful and unethical actions the imprimatur of legality. If we’re going to meaningful address the scourge of money in elections and defend the legitimacy of courts, perhaps we can start with ending judicial elections once and for all.