The most expensive judicial election in United States history will take place in Wisconsin on April 4, and right-wing dark money groups are spending unprecedented amounts to back State Supreme Court candidate Daniel Kelly in this nominally nonpartisan race.
Kelly, who is backed by the Republican Party, is facing off against Milwaukee Circuit Court Judge Janet Protasiewicz, who has said she is running to restore confidence in the state’s highest court, which has been dominated by right-wing partisans issuing decisions siding with the GOP. She is backed by the Wisconsin Democratic Party and has been endorsed by numerous former judges as well as three other members of the Wisconsin Supreme Court.
The race has already doubled the previous spending record for a State Supreme Court seat. If past judicial elections are any indication, even more right-wing special interest money will blanket Wisconsin in the final days before the election.
One of the main issues in the race is Wisconsin’s archaic 1849 abortion ban that is now in play due to last year’s decision by the right-wing U.S. Supreme Court to overturn Roe v. Wade. Wisconsin Attorney General Josh Kaul has challenged the law, and the case could be heard by Wisconsin’s highest court as early as this fall. People in Wisconsin, as with most of the U.S. public, strongly support access to safe and legal abortion and oppose interference by politicians in the reproductive health decisions of doctors and patients.
Kelly has publicly noted that he does not need to raise much money himself, which would be subject to donation limits and mandatory disclosure, because other groups are going to spend millions based on their “interests.” His campaign has already benefited from millions of dollars fronted by the very interested billionaire Richard Uihlein, an Illinois shipping supply magnate with a far right agenda for courts and legislatures.
Why is an anti-abortion billionaire and his front groups willing to spend so much on this race? What do they think is their return on investment? We cannot read their minds; we can only explore some of the relevant history.
In 1988, after televangelist Pat Robertson failed in his bid for the GOP presidential nomination, Kelly began classes at Robertson’s new law school at Christian Broadcasting Network (CBN) University, which shared a campus with CBN’s television studios.
In his presidential campaign, Robertson had asserted that “a Supreme Court ruling is not the law of the United States.” On CBN, Robertson had also made appeals “for the judge of all the Earth to overrule the justices of the Supreme Court of the United States” on abortion and other issues. Robertson even claimed that when the Constitution is “put into the hands of non-Christian people, … [they can use it] to destroy the very foundations of our society,” as documented at the time by People for the American Way.
Robertson-controlled institutions uniformly opposed abortion and sought to ban it, and he repeatedly called for the reversal of Roe and asserted that it had no “constitutional validity whatsoever.” On the campaign trail in 1988, Robertson also attacked an effort by Democrats to repeal an 1840 abortion ban in New Hampshire, and he did so in part by falsely claiming that Planned Parenthood’s “long-range goal is to provide a master race” by sterilizing other races. The day after he made those reckless and inflammatory claims, a gunman fired shots at an abortion clinic in Boulder, Colorado.
That fall, Kelly began attending Robertson’s law school, which was unaccredited by the American Bar Association. In launching the school in 1986, Robertson had recruited some of his professors and purchased the law library from a failed law school run by Oral Roberts University (ORU), which itself was not fully accredited.
The Bar Association made clear in public statements in 1986 that CBNU’s law school was not accredited, and that partial accreditation from ORU could not be purchased or transferred. Aspiring lawyers who chose to attend the handful of unaccredited law schools like it, bypassing more than 100 accredited and ranked ones, risked spending three years of tuition and not being permitted to sit for the state bar exams needed to to practice law. In 1988, Kelly chose CBNU School of Law, taking that risk.
The CBNU law school’s dean, Herbert Titus, declared that the school’s classes would emphasize the application of the Bible to federal and state law, and its students would “be educated in Biblical truths,” stating that, “Our school is distinctive, in that God and His word play a central role.” In contrast, the U.S. Constitution does not mention God, and it expressly bars any religious test or oath to hold office, in addition to the Bill of Rights expressly barring any establishment of religion.
When Kelly attended CBNU School of Law, classes began with a Bible reading and with a Bible on each desk next to law books. News stories documented that classes on corporate law, for example, would begin with a prayer led by the professor, then a devotional shared by a student, then a religious hymn, and then another prayer before studying case law. The recruitment material for the CBNU also “emphasized warfare and conflict,” according to Gerald L. Cooper, a CBNU staffer in the 1980s, and he noted that the ads were “bellicose”: “We’re in a war to win the minds and hearts and lives of the people of America,” and “CBNU is training Christians to reclaim business and law and politics for Jesus Christ.”
The mainstream legal and academic community also raised concerns about Robertson’s agenda. “There is a concern that they are turning out a cadre of Christian lawyers to do battle on abortion rights, to do battle on school prayer, to be there to challenge the laws and policies of a tolerant society,” Steven Green of Americans United for the Separation of Church and State later noted.
In 1989, the CBNU School of Law received partial accreditation from the Bar Association, which allowed the 43 states that required accreditation the discretion to let its graduates sit for the bar exam. But it was not until 1996 that the law school, by then renamed Regent University School of Law, received full accreditation, making its students automatically eligible to take state bar exams. That year, however, Regent ranked dead last among all law schools in Virginia in its bar passage rate. Kelly, meanwhile, had graduated from Regent in 1991 and was subsequently admitted to the Wisconsin bar.
The year he graduated, Kelly echoed the views of his law school dean, as detailed by the noted journalist Bill Lueders in the Wisconsin Examiner, asserting that, “Law originates with God and is impressed on His creation, including mankind.” As the editor of the Regent University Law Review in 1991, Kelly wrote that the publication he helmed sought “to further the mission of the Regent University School of Law: to bring the will of God to bear upon the legal profession through a legal education characterized by excellence, personal discipleship and nurture, and the application of Biblical principles to law.”
Kelly proclaimed: “We believe God’s law has something to say about every area of law.”
He specifically stated:
“To the inevitable objection that the law of nature and nature’s God could not possibly have anticipated such topics as corporate taxation, antitrust suits, or the constitutional incorporation doctrine, I answer: Every legal question must rest on some foundational premise, and that premise must stand the test of measurement against the law of nature and nature’s God.”
In the U.S., federal and state case law definitively does not consider any religious verse or passage from any religious text — whether Old or New Testament, the Quran, the Torah, the Vedas, Dianetics: The Modern Science of Mental Health, or any other religious tract — to be binding legal precedent in our courts of law. That bedrock principle — that the Constitution is the supreme or highest law, and that judges and other elected officials have no right to impose their personal religious beliefs as binding law on other citizens — is what helps secure everyone’s religious freedom and freedom of conscience in our nation.
Indeed, the Constitution expressly states in Article VI that it “shall be the supreme law of the land; and the judges in every state shall be bound thereby…” By law, the U.S. is not a theocracy but a secular democratic republic. The U.S. was founded in defiance of centuries of tyranny imposed by a government decreed to be divine.
Claims that some sort of legally binding and enforceable higher, natural law somehow trumps the U.S. Constitution have been made by extremists and anti-abortion fanatics for years. For example in 1994, three years after Kelly graduated, Regent University Law Review approved and printed an article defending the murder of Dr. David Gunn, an abortion doctor, as “consistent with Biblical truth.” The author, Michael Hirsch, was the defense attorney of Paul Hill, who murdered another abortion doctor. However, with the Bar Association’s potential full accreditation of the law school still undecided, the Law Review chose not to distribute the article, killing the piece post-publication. (On March 21, Kelly appeared at an event headlined by anti-abortion extremist Matthew Trewhella, who in the 1990s was investigated as a possible conspirator in a campaign of violence against abortion providers and signed onto a statement calling the murder of Dr. Gunn “justifiable homicide.”)
Meanwhile CBNU School of Law Dean Titus would later co-author the so-called “Constitution Restoration Act” with former Alabama Chief Justice Roy Moore, which sought to allow government employees to declare “God as the sovereign source of law, liberty, or government.” Later on, Moore would fail in his bid to become a U.S. senator after revelations of his aggressive pursuit of teenage girls when he was a lawyer. But even then Moore was still backed by the same billionaire who is now backing Kelly’s Wisconsin Supreme Court bid: Dick Uihlein.
Uihlein has long funded some of the most extreme and fringe elements of the right wing; he is the primary funder of far right website The Federalist, a raft of anti-abortion special interest groups and other election deniers.
After graduating law school, Kelly went on to publish articles about his views, including his position against abortion. Specifically, he attacked the Democratic Party, the National Organization for Women, and the National Abortion Rights Action League for focusing on abortion with the aim of “keeping it legal.” He also asserted that abortion access is an unequivocally “destructive policy.” He even claimed the “primary purpose” of abortion is “harming children.”
Kelly also asserted that the reason such progressive groups support abortion is “to preserve sexual libertinism” — in other words, adults having the freedom to have consensual sex with other adults whom they choose and to reject religious authority that would bar their freedom. Notably in 1991 — when Kelly was still a student and the editor of the university’s Law Review — Dean Titus similarly advocated “reenacting and enforcing laws that define illicit sexual behavior as a crime. Those who persist in practicing such behavior must be prosecuted.” Just a few years ago, Kelly himself also blasted the U.S. Supreme Court’s ruling striking down the Defense of Marriage Act, which had barred same-sex couples from getting married under civil, non-religious, law.
In 2016, when Kelly was being considered by then-Gov. Scott Walker for a vacancy on the Wisconsin Supreme Court, the leader of Wisconsin Right to Life (WRTL) endorsed his candidacy and noted that he had provided legal advice to her group, whose purpose is to ban abortion. After the text of this letter surfaced, WRTL asserted that Kelly had not been on the group’s payroll but declined to provide any details on anti-abortion cases, policies, projects, or other matters he may have aided the group with over the years.
Kelly’s Money Tied to Those Seeking to Ban Abortion
Wisconsin’s three largest groups seeking to ban abortion — WRTL, Wisconsin Family Action and Pro-Life Wisconsin — have all endorsed Kelly. Additionally, at least five front groups that have been heavily funded by billionaire Uihlein are backing Kelly, who last month touted the amount of money those with special interests would spend to try to help secure him a seat on the court.
In February, Susan B. Anthony Pro-Life America’s (SBA) Women Speak Out PAC announced a six-figure ad buy, adding to the growing outside money backing his ambitions. Despite its name, Women Speak Out’s largest funder is not a woman at all but an extremely rich man: Uihlein, who gave the Super PAC more than $8 million last year. This PAC’s goal is to ban abortion without exception and to elect officials who will aid it in making abortion illegal in the U.S.
Another Uihlein-funded front group that calls itself “Fair Courts America” has spent more than $4 million buoying Kelly, who has raised a mere fraction of that amount himself.
Another Uihlein-funded group seeking to ban abortion, the American Principles Project PAC (APP PAC), has spent at least $300,000 to aid Kelly. Uihlein’s money constituted more than 80 percent of APP PAC’s funds for attack ads last year, via Uihlein’s Restoration PAC and the so-called “Election Integrity PAC” (an SBA-tied front group that is entirely funded by Restoration PAC). Notably, APP’s founding president, Frank Cannon, and Susan B. Anthony List’s President Marjorie Dannenfelser presented their electoral strategy to try to help GOP candidates at a closed-door meeting of the Council for National Policy; that strategy was basically “Don’t say Roe” because voters were upset about the U.S. Supreme Court’s decision to overturn Roe, which was the long-time goal of SBA List and its political allies.
Unlike Uihlein, most Wisconsinites oppose banning abortion and do not think elected officials should meddle in the decisions of doctors and their patients about abortion care. But out-of-state billionaire Uihlein and his allies are spending big, seemingly to try to get that archaic and extreme 1849 ban on abortion imposed against the will of most Wisconsinites. On April 4, voters will find out if Uihlein and company succeeded.
True North’s Lisa Graves and Alyssa Bowen contributed to this story.