Monday, October 27, 2014


By Dominique Paul Noth

Susan Happ and Brad Schimel during Mike Gousha's AG debate.
Every worry I had about the race for attorney general has erupted in nasty ads and Internet posturing a few days ahead of the Nov. 4 election to determine the second most important position on the statewide ballot.  

In August, assessing a strong Democratic field and liking Susan Happ (though criticizing that politically required need to flash her  toughness in TV ads)  I preferred Jon Richards (who is now working hard for Happ). My reasoning was precisely because of what has since happened.

The AG is a massive managerial position not only setting the tone of law enforcement fairness but working closely with other states’ attorneys general to save taxpayers’ money with combined efforts on consumer fraud and corporation misbehavior, something past Wisconsin AGs have been good at and the current AG has booted away given his political leanings. But the public only sees the “top cop” not the broader requirements

The last thing this office needs is playing politics with the law, yet the Republican view, expressed openly  by New Jersey Gov. Chris Christie, is that Republicans need to win state offices to control the voting apparatus – in effect, rigging the laws in their favor, which is why an independent AG concerned about the citizens not either party becomes essential.

Has fictional TV image taken over AG race?
An AG requires devotion to the nuances of both the state and US constitutions, administrative ability and diplomacy even more than courtroom experience. The open-minded intelligence to deal with larger principles of law, plus competently working with people in trouble and agencies responsible for a labyrinth of rules, are far the most important qualities. But you’d never know it from the TV ads that cater to that Ca-POW! “Law and Order” simpleness.

I feared that if the contest was simply two DAs going against each other, the ads would center to a ridiculous excess on “top cop” generalities – television bites lying about who is tougher on pedophiles, who has convicted more people and who has the largest ad money to pound those side issues to the point where the real needs of the job were obliviated. Since it was already clear that a male DA from Waukesha, Brad Schimel, was going to be unopposed on the Republican side, I worried that even a talented DA from a smaller population county, Jefferson, would face a well-heeled partisan overreach and have to respond in kind.  If the TV audience could be fooled by false emphasis on “soft on crime” (both are DAs with strong courtroom results), could the voters be far behind?

Much of that happened. Schimel has also disappointed observers for first giving lip service to his distaste for partisan ads attacking prosecutors he respects, such as Milwaukee DA John Chisholm, and exaggerating charges against his opponent, but then he backed those same anti-Happ ads even in debate and now has been called out correctly for an ad suggesting she turned a bomber loose when he’s actually in prison after the feds stepped in to take over the case.

TV viewers may wonder if the AG candidates
 are creatures from horror movies.
So the Schimel camp is flat inventing things and the Happ advertisers are pounding too hard so that the poor public, confronted with ads from both sides during sports events, can’t tell one from the other and think that both candidates are “The Creature From the Black Lagoon.”

It would be even worse, except that the Democrats are fortunate that their candidate has become known as above partisanship (she won in GOP territory) and has spoken against the gutter politics in both parties as out of context and out of la-la-land. She is also proving deeply capable on the more important legal, administrative and diplomatic sides, with a great record of success in convictions and a calm measured presence in the debates.  She actually drew the top votes in all races Aug. 12.

But sure enough, party hacks have taken over the airwaves and since few voters watched the debate, the race has been dominated by this extremist advertising message about imagined corruption and pedophilia.

Schimel could be in growing trouble.  Happ is a surprisingly personable candidate who quickly tied Schimel in the recent polls. The citizens may start realizing that both are comparable in the top cop department, that women are as tough as men (he’s subtly playing that gender thing up) and he badly falters in debates on what is really needed in an AG -- an independent voice.

Departing partisan AG JB Van Hollen
The two candidates still are largely unknowns fighting for an open seat after the error-prone party vassal J.B.  Van Hollen decided not to run again, perhaps reading the tea leaves that his GOP partner in collusion, Scott Walker, was facing a tough road and realizing that higher legal authorities were circling in on his series of bad and partisan decisions.

Appeals courts and even the US Supreme Court have already done so. He was rebuked over a voter ID bill that tried to disenfranchise thousands of voters, which he had endlessly sought to defend at taxpayer expense.  Then there was his desperate legal appeals against freedom of marriage (which is what the so-called gay rights decision is really about). Then, despite federal orders to let the state courts decide the legality of the John Doe investigation into excessive campaign coordination (which by basic principle he should have supported), he keeps trying to block it.  These go beyond interpretation of the law to playing politics.

Only settlements in the face of hovering failure prevented him from having the courts slap his wrists again in that bizarre attempt to defend state Sen. Leah Vukmir from releasing her email exchanges with ALEC.  

Yet Schimel has made clear that he thought Van Hollen was the ideal model and he will be happy to follow in his footsteps. That is the obvious conclusion of the Happ-Schimel debates. Happ is clearly the most competent candidate on the high road of what an AG does. 

Schimel spent a lot of time in debates reminding viewers of his resume, his Christian family, and love of tradition, but came across as a foot soldier to the governor he may no longer have rather than the Christ I am sure he is clinging to.

Both candidates sought to downplay partisanship on the air and couched their differences in courteous legalese. Happ went out her way to dismiss the attacks in ads on both sides that involve who is hard or soft on crime since there are so many intermediate factors that make those accusations ludicrous.

But there was a political bias that can be detected in the record involving Schimel and it has to do with political support. He let Scott Jensen plead to less than prison while his critics say that passing on a felon  would never happen with a bigwig from the Democratic Party. He refused to pursue Rep. Joel Kleefisch, the looey’s husband, for helping a wealthy constituent write a law that would lower his child support payments. 

Happ is likely to stand independent from both parties (there is already a disagreement between her and Mary Burke about how to handle first-time drunk driving offenders) and focus on enforcement guidelines free of partisan taint. Schimel revealed that partisan outlooks would dominate his ideas of the AG office. 

Happ has impressed
I like Happ’s constant view of the AG’s office as an ethical center of justice, offering legal advice to the legislature and other agencies if they have strayed from constitutional principles. Under Van Hollen and given the pronounced views of Schimel it would take higher court corrective reversal should Schimel be there to continue the Van Hollen pattern.

Schimel has gotten into trouble again and again in this campaign – not just with loose lips saying he opposed minimum wage increase because he wanted fast food workers to “get a real job” (even national columnists have jumped all over that one and for standing behind his party’s platform even when it runs afoul of both the law and economic realities.

In the debates he indicated he preferred to defend the state legislature over the US constitution, though obliged to do both. He went so far as to say it is the purpose of the AG to protect the state against the only enemy he sees – federal overreach.   Yet the AG oath swears to uphold both the Wisconsin Constitution and the United States Constitution, so there obviously can be intrusion from both directions, and there are clauses in the state constitution that are now apparently  illegal under US Supreme Court decisions.

Objectivity cuts both ways. If some gun haters stampeded the state voters into banning gun ownership, the AG should not defend that since it violate US law.  But Schimel, asked an “if” question  in a TV interview,  said while it was personally distasteful  he would nevertheless feel obliged as AG  to defend a voter majority opposing interracial marriage had that happened.  That opened a specter of going along with state majority opposing any visitors from West Africa or seceding from US health care laws, both patently unconstitutional. How hard would he fight even if his party backed the “distasteful”?

The actual case that scored strong points for Happ in the second debate is the AG’s responsibility to defend a state agency from private lawsuits unless he or she sees a constitutional infirmity, which Schimel could not name. But there is a GOP infirmity about defending the Government Accountability Board (consisting of retired judges from both parties, by the way, approved by the legislature and recognized outside the state GOP as restoring nonpartisan decision-making to election operations). 

Happ nailed Schimel who couldn’t find a reason (echo of Van Hollen) to defend the GAB, but there is one. The GAB has angered Robin Vos and the GOP state machinery by making even-handed decisions following the law. 

A surprise for me is how popular Happ is with voters – to the point that some leading Democrats have a side bet who will get the most voters in winning, Burke or Happ. Frankly, I don’t think state voters are that aware of this contest.

I do worry there is still a gender preference in law enforcement in the public mind, somehow thinking men are stronger than women in addressing crime. But Happ is so quietly confident and authoritative that I doubt she still needs to play up the Harley-riding, hunter-loving side of her image (though she clearly thinks it doesn’t hurt).   She is plenty tough and more attuned to what the job requires if the public can get past false expectations. 

There is a larger underlying issue– and the candidates don’t have to play up politics for the voters to realize it is there.  If Burke wins, she will need an independent AG as opposed to someone who tries to keep Walker’s ghost walking the hallways.  If Walker wins, he will need a check, albeit a minor constitutional check which Van Hollen wasn’t and Schimel won’t be, on his monarchial tendencies.

In either scenario the choice has to be Happ. 

About the author: Noth has been  a professional journalist since the 1960s, first as national, international and local news copy editor at The Milwaukee Journal, then as an editor for its famous entertainment Green Sheet, also  for almost two decades the paper’s film and drama critic. He also created its Friday Weekend section and ran Sunday TV Screen magazine and Lively Arts as he became the newspaper’s senior feature editor. He was tapped by the publishers of the combining Milwaukee Journal Sentinel for special projects and as first online news producer before voluntarily departing in the mid-1990s to run online news seminars and write on public affairs and Internet and consumer news. From 2002 to 2013 he ran the Milwaukee Labor Press as editor. It served as the Midwest’s largest home-delivered labor newspaper, with its still operative archives at  In that role he won top awards yearly. His investigative pieces and extensive commentaries are now published by several news outlets as well as his own pieces at Dom's Domain.  He also reviews theater for

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