Litigation

Candidate Koschnick?s Case for Public Financing

By Charlie Hall

One can be forgiven for detecting a whiff of cynicism in the newest lawsuit challenging Wisconsin’s public financing law.

As reported in Gavel Grab, former Supreme Court candidate Randy Koschnick says the law violates his First Amendment rights to … it’s not clear exactly what.  But during his campaign against Wisconsin Chief Justice Shirley Abrahamson, candidate Koschnick had a different take. He thought public financing was a “great idea,” according to a Dec. 23 news report by Wisconsin Public Radio.

Announcing his candidacy last November, Koschnick said:

public financing would enable legitimate candidates to run without necessarily having to be independently wealthy and might also reduce the influence of third-party groups who ?obviously wield a lot of power and money.”

Kudos to candidate Koschnick. He gave an outstanding, pithy explanation of how public financing enhances free speech, by giving more candidates the means to run, and therefore more choices to voters.

That may be why the notably conservative 4th U.S. Circuit rejected similar litigation against North Carolina’s public financing law.  When you look closely, there’s no there there.

If there is a hope in the two suits being filed against Wisconsin’s new law, it is that federal courts will puncture further holes in what can be described as the Great First Amendment Over-Reach–a series of overblown challenges to  common-sense campaign finance laws.

Candidate Koschnick’s remarks raise excellent questions about litigant Koschnick’s lawsuit. First, how exactly does public financing injure him?

In 2009, he raised $171,000 from private campaign supporters; Abrahamson raised $1.4 million. Had both participated in the new system, each would have had $300,000 to spend in public funds. If anything, public financing might have been Koschnick’s best hope for election.

But what about the supposed “chilling” effect cited by Koschnick, and a second suit from Wisconsin Right to Life? They argue that outside groups won’t spend money on races if they know in advance that their spending can be offset by a state ”rescue fund,” which provides up to $900,000 to protect candidates from third-party attacks.

Really. Has anyone tested this theory?

If one thing is certain in election politics, it’s that competitors fight fire with financial fire. Take Wisconsin’s 2008 Supreme Court election, operated under the old, anything-goes system. If $1.1 million in TV ads by the Greater Wisconsin Committee spent in favor of  Louis Butler didn’t scare Wisconsin Manufacturers & Commerce into sitting out an election, why should $900,000 in state rescue funds? In reality, WMC matched the Greater Wisconsin spending with $1.2 million for its own ads, for Michael Gableman. Both figures probably understate real spending.

Litigant Koschnick undoubtedly knows why a rescue fund is essential to any public financing system: No candidate could participate,  if they had to tie their hands against the kinds of big-money groups dominating Wisconsin elections. Losing the rescue fund would have a true chilling effect, forcing candidates to shun the public system-and in many cases not to run at all.

In a grim decade in which runaway special-interest spending undermined confidence in elected courts, public financing expands free-speech choices while protecting courts from campaign cash. Candidates like Judge Koschnick can focus on voters, not special-interest donors.  Candidates are free not to participate, if they think  private fundraising better serves them. Most importantly, voters can choose  judges who owe their loyalty to the public, not a narrow band of special-interest bankrollers. It’s frankly hard to find a loser here.

Before dismantling Wisconsin’s public financing system, litigant Koschnick must do a better job of proving the new law actually hurts him. The First Amendment is a hallmark of human freedom, but it’s not a cure-all for every imagined, hypothetical grievance that can be dreamed up for a lawsuit, whose real goal is to benefit special interests.

Candidate Koschnick had it right. Public financing, so long as it has a rescue fund to make it viable in the real political world, is indeed a great idea–for candidates, the courts and the broader public.

Note: Wisconsin Public Radio does not link to specific news stories, only to its latest headlines. The full text of Shawn Johnson’s Dec. 23 report on the WPR site is as follows:

Former candidate sues over public financing law for high court races
By Shawn Johnson
Wednesday, December 23, 2009
(UNDATED) Former Supreme Court candidate and Jefferson County Judge Randy Koschnick has filed a lawsuit challenging Wisconsin’s new public financing law for Supreme Court races. That’s despite comments he made on the campaign trail in support of public financing.

Koschnick did not take public financing in his unsuccessful race for the state Supreme Court. Any money his campaign spent came either from himself or private donors, and not the state.

But at the press conference where Koschnick announced his candidacy back in November of 2008, he was asked directly how he felt about public financing.

Koshnick responded, “I think that’s a great idea.”

Koshnick went on to say he wasn’t rich, and that he hoped to raise enough money from individuals to run a serious campaign. But, he added that he thought that public financing would enable legitimate candidates to run without necessarily having to be independently wealthy and might also reduce the influence of third-party groups who ?obviously wield a lot of power and money.”

Despite that praise for public financing on the campaign trail, Koschnick is now trying to overturn the entirety of Wisconsin’s new public financing law.

Koshnick’s office referred questions about the lawsuit to his attorney, Jim Troupis. He says the context of Koschnick?s statement as a candidate and the context of the new law are ?very, very different.? Troupis says the law that was passed is not public financing of a campaign, ?it?s financing speech against candidates who don?t take public financing.?

Troupis says he doesn’t know what kind of public financing Koshnick once favored. His suit calls Wisconsin’s new law an “unconstitutional legislative scheme.”

Koschnick’s complaint is the second challenge to the new law. The group, Wisconsin Right to Life, was the first to sue, saying the law chilled its free speech rights.

Full post as published by The Gavel on December 24, 2009 (boomark / email).