That is so August 28, 2008, Mike McCabe


Earlier this week the Center for Competitive Politics sent Wisconsin Governor Jim Doyle a letter expressing our concerns about the so-called “Impartial Justice” bill, yet another ready-to-fail scheme to siphon taxpayer dollars into the campaign coffers of candidates for office. You can read our letter here: letter to Gov. Doyle on constitutionality of judicial campaign finance bill

Our letter makes the obvious points about the failure of similar schemes in other states, and notes that because the program provides additional funding to participating candidates if they are outspent by nonparticipating candidates or independent groups air ads opposing them or aiding their opponent, it is almost certainly unconstitutional under the U.S. Supreme Court’s ruling in Davis v. Federal Election Commission.

Today, Mike McCabe of Wisconsin Democracy Campaign sent his own letter to Governor Doyle in an attempt to rebut our letter. The letter is noteworthy in only one regard, an obvious false statement regarding court rulings on so-called “matching funds.”

McCabe states: The most recent case addressing the trigger matching provisions is the Fourth Circuit’s opinion in North Carolina Right to Life v. Leake which unanimously upheld a public funding program with triggered matching provisions for judicial races.

The only problems with McCabe’s statement, of course, are two little cases called McComish v. Bennett (formerly McComish v. Brewer) in Arizona and Green Party of Connecticut v. Garfield in, you guessed it, Connecticut.

On August 29, 2008, Federal District Court Judge Rosslyn Silver in Arizona issued a preliminary ruling that Arizona’s “matching funds” provision in its taxpayer-financed campaigns program was likely unconstitutional in light of Davis. A final ruling is expected soon (CCP has filed an amicus brief in this case, the only party to do so on either side. You can read it here: Amicus brief in McComish v. Bennett).

Judge Silver writes in her order: Accordingly, Plaintiffs have established that the Matching Funds provision of the Act violates the First Amendment of the U.S. Constitution.

More recently, on August 27 of this year Federal District Court Judge Stefan Underhill in Connecticut struck down that state’s entire program (not just the “matching funds” provision). The judge struck down the law not just because it discriminates against candidates from minor parties, but also because of the matching funds component of the program. Judge Underhill’s opinion is here: opinion of Judge Underhill in Green Party of Connecticut v. Garfield

Judge Underhill wrote in his opinion: Although Davis did not directly address the constitutionality of a public financing scheme’s matching fund provisions, its focus on whether it is constitutional for the government to benefit a candidate’s opponent on the basis of that candidate’s exercise of his or her First Amendment right to make unfettered personal campaign expenditures is pertinent to the issues presented in this case…

I conclude that the trigger provisions place a substantial burden on the exercise of First Amendment rights and the state has failed to advance a compelling state interest that would otherwise justify that burden. Accordingly, the operation and enforcement those provisions must be enjoined…

I suppose it’s possibly that McCabe and his companions at Wisconsin Democracy Campaign have been playing Rip Van Winkle on campaign finance jurisprudence since August 28, 2008 (the day before Judge Silver’s ruling), and are thus guilty of no more than abject ignorance regarding McComish v. Bennett and Green Party of Connecticut v. Garfield.

This seems unlikely, however, given that the letter from CCP they are responding to specifically mentioned both cases.

In light of this, then, I would thus like to extend an offer to Mike McCabe and Wisconsin Democracy Campaign: if you and your group should happen to be brought up on charges of violating Wisconsin’s law against lying in politics, the Center for Competitive Politics will be happy to assist in arguing Wisconsin’s law is a violation of the First Amendment.

It seems the least we could do, after McCabe has done such a fine job of undermining the credibility of his group and the “reform” community who argue for these types of schemes.

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