In a forthcoming article in the Harvard Journal of Law & Public Policy, I argue ( the metaphor is not original with me) that campaign finance reform is like a game of Whac-A-Mole™ in which the moles always win.

The state legislature has passed public financing for state Supreme Court elections. I have no problem with public financing in general but this bill is likely to enhance what most people disliked about our recent hotly contested Supreme Court races. Most of the money in the two hotly contested races was spent by independent groups. For a variety of reasons, those ads tend to be negative which, in a judicial race, means calling your opponent “pro-criminal” or displaying photos of he sex predators that he did not send away for a long enough time.

The bill doesn’t restrict independent expenditures (that would be constitutionally difficult) although it does try to counter their impact by providing increased public financing to candidates who face independent expenditures calling for the defeat of that candidate or the election of her opponent when, in the aggregate, those expenditures exceed 120% of the public financing benefit, i.e., $ 300,000 for the general election. These “matching” public funds are capped at three times the public financing benefit, e.g, $900,000 for the general. 

I argue in the Harvard piece that additional public funding provided in response to independent issue advocacy is probably unconstitutional. The problem is that it penalizes the exercise of a constitutional right by providing additional public funding in response to speech in a way that can be expected to deter that speech. The Supreme Court has used similar reasoning to strike down a federal law that raised the contribution limits of candidates facing self financing candidates who have spent more than a specified amount. The increased limits were seen as an unconstitutional burden on the self financing candidate’s speech rights.

This bill tries to get around that problem by providing additional funding only when the independent expenditures fund express advocacy of the election or defeat of a clearly identified candidate. That shows that someone was thinking.

But I don’t think it works. The problem is this: The Supreme Court has upheld regulation of express advocacy (i.e., calling for the election or defeat of a candidate) because of the state’s interest in preventing actual or apparent corruption. Thus Wisconsin could pass a law that required express advocacy – at least during election season – to be funded with regulated contributions.

But Wisconsin hasn’t done that, suggesting that it does not see express advocacy funded with “soft money” as presenting a threat of corruption. If that’s so, then it’s interest in providing additional public funding in response to independent express advocacy is – presumably – to level the playing field.

The current Supreme Court has not been hospitable to restrictions on speech justified by a desire to level the playing field. Thus, the matching funds provision may well be unconstitutional. (The matter is further complicated by the fact that there is a case currently pending before the Court that may substantially modify doctrine on these questions – perhaps eliminating the distinction between express and issue advocacy by independent parties.)

Even if the provision providing for enhanced public financing in response to independent expenditures is upheld, it is easily avoided. The independents will simply run issue ads criticizing the candidate they don’t like. That’s what most of them do already.

So this is what we will have accomplished. By making it harder for the candidates to raise their own money (the bill reduces the maximum contribution from $10,000 to $1000), the voice of the independents will be enhanced. By deterring express advocacy by the independents (assuming the enhanced funding provisions are upheld), we will encourage “issue advocacy” which, in practice, means attack ads.

Virtually all efforts at campaign finance “reform” are swamped by their unintended consequences. Money, like water, seeks its own level.

But, in fairness, although the bill will do nothing about independent expenditures, it’s not entirely meaningless. The current public financing amounts is so low that no viable candidate would choose to accept it. Although $300,000 doesn’t buy much in a state wide race, there will be candidates for judicial office who can’t raise that amount of money. For example, Randy Koschnick raised only a bit over $100,000 in his challenge to Chief Justice Shirley Abrahamson. She spent around $ 1.2 million. Even if the bills provision for increased public funding for candidates facing a nonpublicly financed candidate who spends in excess of the public financing level (something I also believe is likely), the basic public financing benefit of $300,000would have made him a much more credible candidate.

But it probably would not have been enough. The last two incumbents to run for reelection raised well in excess of $300,000. Louis Butler raised almost $800,000 and, as noted above, the Chief Justice raised about $ 1.2 million. Moreover, had Koschnick had even $300,000 to spend, I suspect that independents supporting the Chief Justice would have spent more heavily. (As it was they did not need to.) Koschnick had very little independent support, although perhaps he would have had more had he been seen as a more viable candidate.

So, even while the public financing scheme may have helped a weak candidate like Koschnick, the limitations on what a candidate can raise probably enhances the advantage of incumbents who are going to be able to raise money from more people because they are incumbents (and some lawyers are reluctant to tell a judge’s campaign committee “no.”) But favoring incumbents has long been a consequence, if not the intent, of campaign finance reform.

Of course, it will be harder for candidates to raise amounts in excess of the amount provided by public financing because of the reduction in the maximum campaign contribution in supreme court races from $10,000 to $1000. To the extent that this results in public financed campaigns capped at $300,000, the effect of the bill will be to enhance the role and impact of the independents.

The moles win again.

Cross posted at Shark and Shepherd.