May 24, 2010
Defending Wisconsin's Impartial Justice Law
On December 1, 2009 Wisconsin Governor Jim Doyle signed into law the "Impartial Justice Act." The Act provides full public financing to qualified candidates for the Wisconsin Supreme Court who agree to abide by a spending limit of $400,000 (for the primary and general elections). This is the most sweeping and significant campaign finance reform in Wisconsin since public financing was first established in 1977. Wisconsin joins North Carolina and New Mexico as the only states to have enacted into law full public financing for state supreme court elections. This was a tremendous victory for political reform and will provide much needed improvement in how we elect supreme court justices in Wisconsin after the demoralizing and disgraceful $6 million 2007 and 2008 contests.
But within weeks of the enactment into law of the Impartial Justice measure, anti-reform organizations and individuals in Wisconsin, together with their Indiana and Virginia-based lawyers, sued in federal court in Madison to have the Impartial Justice law struck down as unconstitutional.
Attorneys with the Wisconsin Department of Justice are defending the new law but Common Cause in Wisconsin and two other state reform organizations (the League of Women Voters of Wisconsin and the Wisconsin Democracy Campaign) immediately stepped forward to do whatever they could to assist in the defense after the two lawsuits challenging the measure were filed. Pro bono legal assistance was immediately offered by a group of concerned attorneys who have been working with the reform groups and with the Wisconsin Department of Justice to develop the case for upholding Impartial Justice.
The legal team consists of Ed Hughes of the law firm Stafford Rosenbaum in Madison, Tacy Flint and David Carpenter of Sidley Austin in Chicago and Angela Migally, Mimi Marziani and Monica Young of the Brennan Center for Justice of the New York University School of Law, which is coordinating the defense effort.
In February, Common Cause in Wisconsin and the other two reform organizations sought to intervene as defendants in the two federal lawsuits attacking Wisconsin's new law. In March, U.S. District Judge Barbara Crabb denied the motions to join the cases as intervening defendants but did grant an alternative request to participate as amicus curiae or "friend of the court." Judge Crabb recognized "the experience the proposed intervenors have to offer" and wrote that there is "no doubt that it will be valuable in resolving this case." By granting friend-of-the-court status, the court invited the three groups to submit briefs on issues involved in the cases. The three reform organizations filed their first amicus brief on April 30, arguing against the motion of failed supreme court candidate and now plaintiff Randy Koschnick to declare the legislation unconstitutional as a matter of law.
The court is expected to decide the cases before the end of the year. The fate of the Impartial Justice Act and the integrity of future State Supreme Court elections in Wisconsin hang in the balance. But we feel very good about our chances of prevailing in Court and upholding this important political reform.
One very big and significant reason for optimism is because of a stunning victory for reformers on Friday when the Ninth Circuit U.S. Court of Appeals issued this ruling affirming the constitutionality of Arizona's system for publicly financing its state elections -- and the "matching funds" provision there that has been attacked by anti-reform groups in Wisconsin. (Arizona politicians await Supreme Court ruling on matching funds). The case now heads to the U.S. Supreme Court. This decision was issued at just the right time to help bolster our case in defense of Impartial Justice in Wisconsin.
Jay Heck, Executive Director
Common Cause in Wisconsin
152 W. Johnson St., Suite 212
Madison, WI 53703
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