Dual suits in WI aim to stop new public financing for state supreme court races

Judge Randy Koschnick

The AP and the Milwaukee Journal Sentinel are reporting today that a second suit has been filed against a bill that greatly expands the public funds available for state Supreme Court races.  The suit, filed by Jefferson County Circuit Court Judge Randy Koschnick, opposed the bill on similar grounds as a suit filed on Dec. 18 by Wisconsin Right to Life.  Koschnick, who ran unsuccessfully for the Supreme Court in 2009 and has stated his intent to run again, is supported and represented by the Center for Competitive Politics, a Virginia based “nonprofit, nonpartisan organization dedicated to promoting and protecting the First Amendment political rights of speech, assembly and petition.”

Koschnick ’s suit states that “The Act, as a whole, violates the Speech Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by suppressing the speech of candidates for the Office of Justice and the electorate and by favoring publicly-financed candidates over those who use private funds.”

The Impartial Justice Act (SB 40), signed into law on Dec 1 by Wisconsin Gov. Jim Doyle, provides $100,000 for primary races and an additional $300,000 for the general elections, given candidates previously raised $5,000 to $15,000 in $5 to $100 donations and agree to spending limits for the duration of the campaign, an attempt to curb the rising costs of campaigns for the highest court.  In addition, these candidates will receive extra money – as much as $300,000 in the primary and $900,000 in the general election – if outspent by an opponent who has opted out of the public financing system or if third-party groups run ads against them.

It is this provision regarding the spending of independent third parties that lies at the heart of the two suits, which challenge, as stated in a press release by the Center for Competitive Politics, “the program’s restrictions on independent groups who plan to exercise their First Amendment right to support or oppose candidates in the upcoming 2011 Supreme Court race.”  Similar provisions that provide additional funds for publicly financed candidates triggered by third-party spending, often known as “rescue funds,” have been ruled unconstitutional in Connecticut and Arizona.

The Wisconsin Law Journal reminds that “the new law makes no effort to stop third party advocates from running potentially influential “issue ads,” which have become prominent in recent Supreme Court elections.  According to campaign watchdog group the Wisconsin Democracy Campaign, business group Wisconsin Manufacturers & Commerce spent more than $1.7 million supporting Justice Michael J. Gableman in 2008. The same year electioneering group Greater Wisconsin Committee spent more than $1.4 million in support of then Justice Louis B. Butler.”

The Law Journal also notes that $400,000 in public funds is small compared to what has recently been spent on state Supreme Court races.  The 2007 race between Justice Annette K. Ziegler and opponent Linda M. Clifford set a record at $2.6 million combined, and Chief Justice Shirley S. Abrahamson recently spent $1.3 million in her successful re-election, seven times the amount spent by Judge Randy R. Koschnick, the plaintiff in the recent suit.  University of Wisconsin-Madison Political Science Professor Charles Franklin’s offered skepticism regarding the overall effectiveness of the Impartial Justice Act, stating ““It is unlikely that $400,000 will produce a very informed electorate…I think the big unknown is the role of independent groups, who still see important issues at stake in judicial outcomes and who may still have incentives to invest far more than $400,000 in such elections.  In that circumstance, I’m not sure how the Impartial Justice Bill will fare.”