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Court Case

Wisconsin Right to Life PAC v. Michael Brennan

A federal district court in Wisconsin upheld the constitutionality of Wisconsin’s judicial public financing program. In doing so, the court found no merit to plaintiffs’ claims that the law infringed on the free speech rights of Wisconsin residents and political organizations, or their ability to participate vocally in the state’s judicial elections.

Published: June 17, 2011

On March 31, 2011, a federal district court upheld the constitutionality of Wisconsin’s judicial public financing program in its entirety. In doing so, the court found no merit to the claims of plaintiffs Wisconsin Right to Life PAC, George Mitchell, and the Wisconsin Center for Economic Prosperity that the law infringed on their ability to participate vocally in the state’s judicial elections.  More information about the underlying case and the Brennan Center’s efforts is available below.

Plaintiffs subsequently appealed the district court’s decision to the Seventh U.S. Circuit Court of Appeals.  On June 17, 2011, the Brennan Center and co-counsel Sidley Austin LLP and Stafford Rosenbaum LLP filed an amicus brief in the Seventh Circuit on behalf of Common Cause in Wisconsin, the Wisconsin Democracy Campaign, and the League of Women Voters of Wisconsin Education Fund.

Brennan Center’s Amicus Brief in WRTL v. Brennan (Seventh Circuit): The Brennan Center’s brief argues that, unlike other elected officials, judges have a duty, under the Constitution’s 14th Amendment to be impartial. Therefore the state’s constitutional obligation to prevent bias and protect the appearance of impartiality in the courtroom represents a compelling government interest that is unique and distinct from the anti-corruption interest ordinarily implicated in campaign finance cases.  As the brief explained:

Plaintiffs wrongly argue that Wisconsin’s legitimate interests in the regulation of judicial elections are limited to preventing corruption and that the instant case is controlled by recent decisions invaliding regulations of legislative elections.  Plaintiffs ignore that whereas legislators are elected to represent specific interests, judges must appear impartial.  That is a requirement of the Due Process Clause, and the Supreme Court has held that spending in judicial election campaigns can undermine the appearance of judicial impartiality.  Caperton v. A.T. Massey Coal Company, 129 S. Ct. 2252 (2009).  Wisconsin therefore has a compelling interest in assuring spending in judicial elections does not undermine the appearance that Wisconsin state judges are impartial. As the district court explained, Wisconsin’s interest “in safeguarding [against] even an appearance of bias” distinguishes this case from “any of the public financing statutes considered by courts to date.” 

Amici urged the Court to reject appellants’ First Amendment claims in light of these critical constitutional interests, noting that “the challenged trigger provisions have not hampered anyone’s ability to participate in Wisconsin’s judicial elections—including, and especially, the Plaintiffs.”


Summary of the Case: On December 1, 2009, the State of Wisconsin enacted the Impartial Justice Act, establishing a voluntary public funding program for state Supreme Court elections. Under the Act, eligible candidates can receive the benefit of public funds in exchange for accepting certain countervailing burdens, including forgoing all potentially corrupting private contributions and abiding by spending limits. The Act also contains a “trigger” clause for supplemental grants, in the event that a candidate is targeted by high-spending third parties. Wisconsin Right to Life PAC, George Mitchell, and the Wisconsin Center for Economic Prosperity filed a suit against the Government Accountability Board, claiming their free speech was violated by the Act.

On March 31, 2011, the federal district court in Wisconsin upheld the constitutionality of the Impartial Justice Act. Of particular note was the court’s finding that the law’s “trigger” provision survived strict scrutiny under the First Amendment. This provision — which can award supplemental funds to a publicly-financed judicial candidate so that she may respond to independent ads expressly advocating her defeat or the election of her opponent — is somewhat similar to the “trigger” provision currently being reviewed by the United States Supreme Court in the context of Arizona’s legislative races in McComish v. Bennett.

The Wisconsin district court acknowledged that its decision could be affected by the Supreme Court’s pending decision in McComish. However, the district court distinguished Wisconsin’s judicial public financing program from the legislative races at issue in McComish. The court emphasized that Wisconsin has a particularly strong interest in promoting public financing for judicial candidates, in order to combat the risk of bias (or the appearance of bias) that the Supreme Court warned against in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009). As the district court explained, with public financing “judicial candidates or their proxies are not engaged in the unseemly process of raising and spending large sums of money directly, nor in regularly having those same contributors appearing before them as counsel or parties.” 

The district court further concluded that “plaintiffs have failed to establish their speech actually has been or will be meaningfully burdened by the Act’s matching funds provision.” As the court explained:

At most, plaintiffs’ claim of possible “self-censorship” is a tactical decision, not unlike one faced by all contributors to a campaign regardless of the Act’s matching funds provisions. Whenever one candidate or her supporters spend money to facilitate political speech, they must weigh the potential benefit of getting out their message against the opposing candidate’s and his supporter’s ability to respond, as well as the strength of that candidate’s opposing argument.

The district court also easily ruled against plaintiffs’ claims that Wisconsin’s $1,000 limits on contributions to judicial candidates violated their First Amendment rights.

The district court’s decision in WRTL can be found here.

The district court simultaneously dismissed a companion case challenging the Impartial Justice Act, Koschnick v. Doyle, for lack of standing, an argument first raised by the Brennan Center and pro bono partners Sidley Austin LLP and Stafford Rosenbaum LLP in an amicus brief filed on behalf of Common Cause of Wisconsin, the League of Women Voters Education Fund, and the Wisconsin Democracy Campaign.

The Brennan Center also filed an amicus brief in the related case of Wisconsin Prosperity Network v. Myse, urging the Wisconsin Supreme Court to uphold the state’s disclosure law for independent expenditures. And the Brennan Center tracked all television advertising in the 2011 Supreme Court election in Wisconsin, the first held under the state’s public financing system.


Brennan Center’s Amicus Brief in WRTL v. Brennan (District Court): The plaintiffs challenging Wisconsin’s judicial public financing program moved for summary judgment, and the State of Wisconsin moved for judgment on the pleadings.  The Brennan Center filed an amicus brief with co-counsel Sidley Austin LLP and Stafford Rosenbaum LLP on behalf of Common Cause of Wisconsin, the League of Women Voters Education Fund, and the Wisconsin Democracy Campaign, opposing the plaintiffs’ summary judgment motion.  The court subsequently denied plaintiffs’ motions for summary judgment and for a preliminary injunction.

The Brennan Center's amicus brief, filed on July 30, 2010, argued that publicly funded candidates and traditionally funded ones are not similarly situated, and so there is no unlawful discrimination when they are treated differently by the law, especially as the traditionally funded candidate is able to raise unlimited funds. Our brief further argued that even if the court believed the plaintiffs' arguments were sound, then summary judgment would still not be appropriate, because the court must critically evaluate the plaintiff’s allegations of injury and no such evaluation is possible without factual discovery.

Summary of Argument: There are two main arguments in the Brennan Center’s brief. The first is that the premise of the case is unfounded and there is no injury to the plaintiffs in the trigger clause of the Act; the second is that even if the court finds that the plaintiffs are correct in their assessment of injury, that a summary judgment is still inappropriate.

First, the Wisconsin Right to Life PAC and other plaintiffs should have their injury assessed in the context of public financing rather than private fundraising. The benefits given to candidates participating in a voluntary public financing program does not result in injury to non participants, as more speech for one candidate does not reduce speech for their opponent. Courts have repeatedly found that First Amendment issues are advanced, not abridged, when public funds enable dialogue between political opponents. Participants in Wisconsin’s Public Financing program opt into a regulatory regime that is wholly different from the rules applicable to traditionally funded candidates, and there is no unlawful discrimination in their disparate treatment and no competitive advantage for those candidates that receive public grants. The reality is just the opposite, those candidates who are traditionally funded are able to amass private funds and make unlimited expenditures, an advantage over the publicly funded candidate who must abide by an expenditure cap.

If the court determines that the triggered supplemental funds impose a burden on the constitutional rights of the Wisconsin Right to Life PAC and the other plaintiffs, mixed questions of facts and law arise making a summary judgment inappropriate. The flexible standard of scrutiny that is applied to cases of campaign finance regulations require factual development, and the court must critically evaluate the plaintiffs’ allegations of injury. Such an evaluation could not be complete unless defendants have the opportunity to test those claims through factual discovery. The Plaintiffs’ complaint is that their speech may be less effective if they spend over the threshold amount that enacts the triggered grants, and the publicly financed opponent would be able to respond. But the plaintiffs have to right to speak free from response, as political dialogue is the goal of the First Amendment. Without factual record, the Court cannot ascertain the existence and extent of the Plaintiff’s alleged burden.

If the court finds the regulations do burden free speech, the reviewing court must then determine if that burden is justified by sufficiently important governmental interests. There has been no discovery done concerning the important state interest underlying the Impartial Justice Act. Factual discovery is particularly important here given the new context of public financing for judicial elections. This case presents a largely unexplored context for the questions surrounding money and politics as it relates to judicial elections. As publicly financed campaigns are used to prevent corruption and its appearance in the election of public officials in other branches, there is reason to believe that Wisconsin’s interest in the Impartial Justice Act is even stronger. In considering the factual development of this case, the Court must also evaluate the degree to which supplemental grants in highly expensive races are necessary to encourage fulsome participation in Wisconsin’s public funding program.