Public Campaign Financing Could Tip the Balance of the Wisconsin Supreme Court

By Collin Roth, Media Trackers

Happy Filing Day!

Yes, that’s right, January 4th marks the beginning of another campaign season. On the heels of inaugural celebrations for those elected in November, Wisconsin candidates for a number of non-partisan offices are filing their paperwork today for the April 5th Spring Elections. While historically a lower turnout affair, the 2011 Spring Election features a high-profile Wisconsin Supreme Court race with the added nuance of a new public financing component. The implications of this particular Supreme Court race can’t be understated given the tenuous 4-3 conservative majority on the court.

The campaign features incumbent and conservative Justice of the Supreme Court David T. Prosser against liberal challengers including; former Wisconsin Assistant Attorney General JoAnne Kloppenburg, State Public Defender Marla Stephens and Madison attorney Joel Winnig. In the wake of the absolute Republican tidal wave that was officially sworn in yesterday, conservative incumbent  Prosser would appear to have an easy edge for reelection, but a little noticed piece of legislation passed on December 1, 2009 may have grave implications for Justice Prosser and conservatives who hope to maintain the all-important majority on the court.

The Impartial Justice Act passed by Democratic majorities in the state legislature, and signed by Democrat Governor Jim Doyle in December 2009, took effect on May 1, 2010. The Act establishes a voluntary public financing program called the Democracy Trust Fund for candidates running for Justice of the Supreme Court. Candidates who choose to participate in public financing for their campaign must abide by very strict fundraising and expenditure restrictions in order to qualify for a Primary grant of $100,000 and a subsequent $300,000 grant for those candidates who qualify for the April 6th Spring Election.

Candidates for Justice of the Supreme Court aren’t required by law to participate in the public financing program, but built into the Impartial Justice Act are strong disincentives to opt out. Most prominent is a supplemental rescue grant for participating candidates to match any expenditure made by a non-participating candidate that exceed 120% ($120,000 for the Primary and $360,000 for the Spring Election) of the initial public financing grant. In other words, the state of Wisconsin is ensuring that if you want to raise your own funds for your campaign and not receive any public money, those who do take public money can’t be outspent by more than 20%.

Perhaps the Impartial Justice Act began with noble intentions, such as trying to extricate money and influence from the high court in order to maintain “a fair, neutral, impartial, and non-partisan Wisconsin judiciary.” But in practice, the Act has severe implications that don’t square with the values of our Constitution.

For starters, there are always First Amendment issues when dealing with campaign finance regulations. In December of 2009, Wisconsin Right To Life filed a complaint against the Wisconsin Government Accountability Board claiming that the Impartial Justice Act “violates the First and Fourteenth Amendments to the United States Constitution by unduly impinging upon protected political speech and association” and more specifically that the Act “reduces the ability of Wisconsin Right to Life to participate in judicial elections” through the regulation of independent expenditures and the supplemental rescue grants for participating candidates. By offsetting private campaign contributions, the state is reducing influence, part of the purpose of the Act. But if campaign contributions are an extension of First Amendment rights to free speech, the Impartial Justice Act clearly violates the Constitution.

Second, the Democracy Trust Fund is supposed to be funded by $3 voluntary check-offs by Wisconsin taxpayers on state income tax returns. But if the Fund doesn’t accrue enough $3 donations to fully fund the candidates, as is expected, then the state is on the hook to provide enough money for participating candidates. For those of you unfamiliar with the status of Wisconsin’s budget, it faces a $3.3 billion dollar deficit over the next two years. Needless to say, Wisconsin can’t afford to publicly finance modern Supreme Court campaigns that over the last three elections have seen candidates raise an average of $900,000 each.

Finally, public financing for the office of Justice of the Supreme Court simply has no place in our republic. Wisconsin taxpayers shouldn’t be coerced into funding candidates for Supreme Court that  they may not personally endorse. Furthermore, the Impartial Justice Act uses the power of the state to artificially level the playing field among candidates for the Supreme Court. Under the new Act, candidates can receive significant amounts of public money not based on merit, qualification, or popularity among voters, but by simply declaring ones candidacy and following arbitrary rules devised by the government. The Impartial Justice Act represents a troubling intrusion of the state into the realm of free elections.

All but one of the candidates for Justice of Supreme Court in the state of Wisconsin are participating in the Democracy Trust Fund to publicly finance their campaigns. Wisconsin’s experiment with the Impartial Justice Act begins today. On April 5th 2011, the implications of this little noted law may just alter the makeup of the Wisconsin Supreme Court.