Doyle signs flawed bill, flunks Con. Law 101

Wisconsin Gov. Jim Doyle signed flawed legislation today enacting taxpayer financed campaigns for judicial races.

Doyle apparently knocked the Center for Competitive Politics at his bill signing ceremony in response to a reporter’s question, criticizing our analysis that the bill, SB 40, is unconstitutional.

The Milwaukee Journal Sentinel reports:

Before Doyle signed the bill, the Center for Competitive Politics sent him a letter saying he shouldn’t sign the bill because a court would likely strike it down. The group argues the measure is unconstitutional because it gives an unfair advantage to those who accept public money.

Doyle discounted the group’s argument Tuesday, saying the law is constitutional because candidates don’t have to accept public money.

The Virginia-based group, co-founded by former Federal Elections Commission member Bradley A. Smith, fights campaign finance regulation but has not said whether it would sue over the Wisconsin law.

Doyle’s statement is beyond ridiculous. There is no such thing as an involuntary taxpayer financing program. Of course such a program would be blatantly unconstitutional, but that doesn’t mean it’s the sole reason taxpayer financing systems can run afoul of the First Amendment.

The two most recent federal court decision on taxpayer funded campaigns both ruled that so-called rescue funds provisions are unconstitutional because they punish non-participating candidates by doling out more government money to participating candidates. If someone spends money on ads and other political speech and their opponent is rewarded with a government handout to attack them, that chills speech and is unconstitutional. Non-participating candidates certainly don’t volunteer to allow their opponents to receive taxpayer subsidies to bash them.

In Connecticut, a federal judge struck down a taxpayer financing system for legislative candidates as unconstitutional in August. The case is Green Party of Connecticut v. Garfield. Connecticut’s program has myriad constitutional problems, but the ruling directly addresses rescue funds:

I further conclude that the CEP’s excess expenditure and independent expenditure provisions also unconstitutionally burden the plaintiffs’ exercise of their First Amendment rights. In a manner analogous to the law struck down by the Supreme Court in Davis v. FEC, __ U.S.__, 128 S. Ct. 2759 (2008), the expenditure triggers in the CEP require non-participating minor party candidates and minor parties considering making independent expenditures to choose between limiting their political speech and providing bonus public funding grants to candidates they oppose. Again, the state has failed to show that these trigger provisions are supported by interests sufficiently compelling to withstand strict scrutiny. [emphasis added]

Looks pretty clear to us: trigger provisions for extra government funds to participating candidates violate the First Amendment. CCP explained other problems with that program here.

In Arizona, a federal judge preliminarily ruled that a similar rescue fund provision violates the First Amendment, relying on the Supreme Court’s jurisprudence in Davis v. Federal Election Commission. The case is McComish v. Bennett (formerly McComish v. Brewer). The judge declined to stop the program because an election was nearing and the case remains pending.

It really doesn’t get much clearer than this: “Plaintiffs have established that the Matching Funds provision of the Act violates the First Amendment of the U.S. Constitution.”

To be fair, some courts had split on this issue, but these splits were before the U.S. Supreme Court decision in Davis in 2008. I don’t know what’s worse: that Gov. Jim Doyle and his legal advisors apparently deny the existence of these rulings or they are apparently pushing ahead in the face of a near-certain successful lawsuit.

The Center for Competitive Politics explained earlier why the bill is unconstitutional and sent a letter to Gov. Doyle explaining our concerns. We sent an updated letter after the Wisconsin Democracy Campaign distorted the factual record on the federal courts’ campaign finance jurisprudence on this issue.