By Andrew Cook
Governor Jim Doyle last December signed into law 2009 Wisconsin Act 89, the so-called “Impartial Justice Act,” which creates a public financing scheme for candidates to the Wisconsin Supreme Court.
Under the new law, which takes effect Dec. 1, 2010, an eligible candidate may receive $100,000 for the primary election and $300,000 for the general election. To qualify for public financing, the judicial candidate must collect 1,000 qualifying contributions in amounts of $5 to $100 in an aggregate amount of between $5,000 and $15,000. A candidate that accepts public financing is prohibited from soliciting and spending private funds other than the seed money discussed above.
The law also includes matching or trigger provisions, which provide additional public funding to publicly funded candidates when certain conditions are met. The first trigger occurs when a candidate who does not accept public financing spends a certain amount more than the publicly funded candidate. The publicly funded candidate is eligible to receive a dollar-for-dollar match for every dollar the nonpublicly funded candidate spends above a certain threshold ($105,000 in the primary and $315,000 in the general). 
The second trigger occurs when any person or entity makes an independent expenditure in favor of one of the candidates. At that point, the publicly financed candidate is allowed to receive additional public funding up to three times the public funding benefit. The threshold for this trigger is 120 percent of the amount a publicly funded candidate is eligible to receive in the primary or general election ($120,000 in the primary and $360,000 in the general election).
For example, additional public funding is triggered if Candidate “A” refuses to accept public financing and spends five percent more than the $100,000 allotted to the publicly funded candidate (Candidate “B”) in the primary, or $300,000 in the general. The publicly funded opponent (Candidate “B”) is then eligible to receive up to $300,000 from the state in the primary election and $900,000 from the state in the general election.
Wisconsin Law Challenged in Court
The purported rationale behind the legislation is to curtail spending in Wisconsin Supreme Court elections and to remove the perception that campaign contributions influence the Court’s decisions.
Whether Wisconsin’s law will withstand a constitutional challenge, however, is questionable. Soon after the bill was signed into law, a lawsuit was filed by Jefferson County Circuit Judge Randy Koschnick alleging that the law violates the Constitution of the United States.
Judge Koschnick ran unsuccessfully in 2009 against Chief Justice Shirley Abrahamson. In his complaint, Judge Koschnick notes that he is exploring running for a seat on the Wisconsin Supreme Court in the future and argues the law violates the First Amendment’s Speech Clause, and the Fourteenth Amendment’s Equal Protection Clause.
Three similar lawsuits winding their way through the court system will likely decide whether Wisconsin’s law – which is nearly identical to the other laws currently being challenged – is constitutional.
Challenge to Arizona’s Public Finance Law – McComish v. Bennett
Similar to Wisconsin’s law, Arizona’s public campaign finance law provides a matching scheme whereby candidates who accept public financing are eligible to receive a dollar-for-dollar match up to $900,000 to counter spending by a candidate that does not accept public financing. Like Wisconsin’s law, the Arizona public finance law was challenged in court alleging violations of the First and Fourteenth Amendments.
The plaintiffs in Arizona argued that the law’s trigger provision burdened their exercise of protected political speech by punishing them for making, receiving, and spending campaign contributions. They alleged that their fear of triggering matching funds to their opponent causes them to curb their campaign fundraising or spending, and thus chilled their speech. They further argued that the law treats candidates differently based on whether or not they participate in the public finance scheme, and thus denies them equal protection of the law under the Fourteenth Amendment.
The federal district court struck down the law holding that the matching funds provision violated the First Amendment. The court did not reach the Equal Protection claim. The decision was appealed to the United States Court of Appeals for the Ninth Circuit, which reversed the lower court.  In its decision, the court ruled the Arizona’s matching funds provision did not impose and undue burden on candidates that opt out of public funding.
The case currently is being appealed to the U.S. Supreme Court. Soon after the Ninth Circuit upheld the law and reversed the lower court, the plaintiffs filed a petition with the U.S. Supreme Court requesting it block the State of Arizona from releasing public funding money until the Supreme Court either accepts the case and issues a decision, or denies review. Justice Anthony Kennedy signed the order prohibiting the State of Arizona from disbursing state funds to candidates until a decision is rendered.
Connecticut Public Finance Law Struck Down As Unconstitutional – Green Party et al. v. Garfield
In 2005 the State of Connecticut passed a public finance law for political campaigns similar to the Arizona and Wisconsin laws. Under Connecticut’s law, candidates who qualify for public financing are eligible to receive additional public funds – in the form of supplemental grants – in the event they are outspent by a nonparticipating candidate or by any other non-candidate individual or group.
The law was challenged in federal district court. In a 138-page decision, the judge struck down the provision as a violation of the First Amendment.
On appeal, the United States Court of Appeals for the Second Circuit upheld the lower court’s decision and ruled that the trigger provisions violated the First Amendment. According to the court, the trigger provisions imposed a “substantial burden on the exercise of First Amendment rights” and the state “failed to advance a compelling state interest that would otherwise justify that burden.” 
Florida’s Matching System Struck Down by 11th Circuit Court of Appeals
On July 30, 2010, the United States Court of Appeals for the 11th Circuit also struck down a law similar to Wisconsin’s Impartial Justice Act.
Florida’s public finance system provides a subsidy to a publicly funded candidate when an opposing candidate who has chosen not to participate in public financing exceeds the statutory expenditure limit ($25 million). If a candidate that does not accept public financing spends over this threshold, it triggers a dollar for dollar subsidy for every dollar spent over the limit.
During the Florida Republican gubernatorial primary, a wealthy candidate self-financed his campaign, and therefore did not accept public financing. His opponent, Attorney General Bill McCollum, did accept public financing. The candidate (Rick Scott) that opted out of the public financing scheme brought a preliminary injunction seeking to enjoin enforcement of the matching or triggering provision.
The district court stated that Florida was required to prove its matching provision did not violate the First Amendment. The court then ruled that Florida met its burden by showing that the law furthered the State’s interest in preventing corruption and thus was narrowly tailored to serve that end.
The 11th Circuit Court of Appeals reversed and ruled that the law violated the First Amendment. According to the court, the law must meet the exacting strict scrutiny standard, and found that the state failed to show that the law furthered the State’s interest in the least restrictive manner possible.
Is Wisconsin’s Impartial Justice Act Unconstitutional?
Trying to decipher what, if anything, the U.S. Supreme Court’s order in the pending McComish decision means is nearly impossible. The tersely worded order provides no insight into the Court’s decision to prohibit Arizona from disbursing public funds while the case is appealed. Moreover, the Court’s order may be short-lived; if the Supreme Court denies the appeal, Arizona’s law would remain valid.
If, however, the Supreme Court accepts the case, that decision would ultimately decide whether Wisconsin’s law is constitutional. Scholars studying this issue note that if the U.S. Supreme Court does accept the case, it could spell trouble for states that have adopted public financing laws that include matching or triggering provisions. A recent U.S. Supreme Court decision, Davis v. Federal Elections Commission, could be extended to strike down state laws that include matching provisions. In fact, the Second and Eleventh Circuit Courts of Appeals both relied on Davis in striking down those states’ campaign finance laws.
Davis involved a challenge to a provision in the federal McCain-Feingold law that subjected wealthy self-funded candidates to heavier reporting burdens than their non-self funded opponents. Known as the “Millionaire’s Rule,” the law also gave non-self funded candidates greater leeway in coordinating with political parties and allowed those candidates to accept larger individual donations.
In striking down this provision, the U.S. Supreme Court said, “The argument that a candidate’s speech may be restricted in order to ‘level electoral opportunities’ has ominous implications” and is “antithetical to the First Amendment.” The Court’s decision essentially calls into question the constitutionality of public financing laws that allow a candidate to forego private funds in exchange for public financing and the possibility of receiving additional public funds if his or her opponent or supporters run ads in excess of the candidate who took public financing.
With the significant split among the three appellate courts, it is even more likely the U.S. Supreme Court will accept one (or all three) cases in order to resolve the competing precedents.
Lawsuits challenging state laws that restrict campaign spending could derail Wisconsin’s recently enacted Impartial Justice Act. By including a matching or triggering provision that benefits publicly financed candidates over candidates that opt out of public financing, Wisconsin’s law could very well be found to violate the Constitution’s First Amendment.
 McComish v. Bennett, __ F.3d __, 2010 WL 2011563 (May 21, 2010).
 Green Party of Conn. v. Garfield, 648 F. Supp. 2d 298 (D. Conn. 2009).
 Green Party of Conn. et al. v. Garfield, et al, 09-3760-cv(L), 09-3941-cv(CON).
 Scott v. Roberts, ___F.3d___, 2010 U.S. App. LEXIS 15897 (11th Cir. July 30, 2010).
 Emily C. Schuman, Davis v. Federal Election Commission: Muddying the Clean Money Landscape, Loyola of Los Angeles L. Rev., Vol. 42:737 (Spring 2009).
 554 U.S. ___ (2008).
 See Election Law Blog, July 13, 2010 at http://electionlawblog.org/archives/016413.html.