Wisconsin lawsuit tests a pioneering campaign finance law

A conservative political advocacy group is asking a federal judge to strike down as unconstitutional Wisconsin’s new plan to provide public funding for state supreme court candidates.

The plan was signed into law Dec. 1 and took effect Dec. 16. Wisconsin supreme court candidates who agree to rely solely on public funds are provided an initial campaign war chest of $300,000. But they can qualify for up to $900,000 in public funding depending on how much a non-publicly funded opponent and independent groups opposed to publicly funded candidates plan to spend during the election.

The nonprofit group Wisconsin Right to Life (WRTL) Political Action Committee is challenging the law because its lawyers say it creates a chilling effect on potential participation by WRTL and other similar groups in judicial elections.

“Under this system simply running an ad against a candidate can result in that candidate getting more taxpayer money,” says James Bopp, who is representing WRTL in the case. “Third parties are chilled from speaking in support of a candidate because doing so will likely result in providing additional funds to that candidate’s opponent,” he says.

Wisconsin's crusade

Wisconsin is a pioneer in exploring new ways to try to reduce the influence of money and wealthy special interests in judicial elections. Supporters of public funding programs say they level the electoral playing field among candidates with differing financial resources. They add that such plans help focus the contest on ideas rather than a fundraising arms race.

Wisconsin lawmakers said the new election statute was designed to encourage the “broadest possible participation in financing campaigns by all citizens of the state, and to enable candidates to have an equal opportunity to present their programs to voters.” They also said the law would prevent an unfair advantage to incumbents and protect the integrity of the election process.

In his complaint, Mr. Bopp says the law reduces the ability of WRTL to participate in judicial elections in Wisconsin and thus violates the right to engage in political speech and association under the First Amendment.

“A state public campaign financing scheme violates the right to free political speech where it goes beyond mere promotion of the voluntary use of public funding and improperly injects the state into the political process by attempting to equalize the relative financial resources of the candidates,” the complaint says.

How the program works

Under the Wisconsin program, any person or group spending money in the election must report expenditures in excess of $1,000. The reports are then tallied and compared with the campaign expenditures of political opponents to determine whether a publicly-funded candidate qualifies for additional public funds up to $900,000.

Independent expenditures by advocacy groups are counted in that calculation and can trigger a higher level of public funding for candidates participating under the new law.

“This statute amounts to an unconstitutional content-based regulation of political free speech, in that it treats speech differently depending on whether it opposes or favors a publicly funded candidate,” the WRTL complaint says.

The new law “imposes a climate of self-censorship that is inimical to our American heritage of unfettered political discourse,” it says.

The case is Wisconsin Right to Life Political Action Committee v. Michael Brennan. It was filed on Friday in federal court in Madison, Wisc.

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