Groups argued against provision that gives candidates extra money if outside spending reaches threshold

March 31, 2011- A federal judge in Madison on Thursday dismissed two challenges to Wisconsin's law on the financing of Supreme Court elections, a law being applied for the first time in the race that's on the ballot Tuesday.

Wisconsin Right to Life, joined by the Wisconsin Center for Economic Prosperity and school choice advocate George Mitchell, had sought an injunction to halt the public financing process for the election. They contend the law violates their free speech rights under the First Amendment.

In a 39-page opinion and order, U.S. District Judge William M. Conley denied the plaintiffs' motions and granted judgment to the defendants, which include the Government Accountability Board, the secretary of state and the district attorneys of Milwaukee and Waukesha counties.

Conley wrote that in light of the state's undeniably compelling interest in avoiding the perception that Supreme Court elections are tainted with an appearance of bias, he was upholding the law.

Wisconsin Right to Life said it intends to appeal immediately for emergency relief in advance of Tuesday's election pitting incumbent Justice David Prosser against Assistant Attorney General JoAnne Kloppenburg.

In a separate order, Conley also dismissed a similar challenge by former Supreme Court candidate Randy Koschnick, who ran unsuccessfully in 2009 with private funding and said he expected to run again.

But Conley found that Koschnick had no standing to bring the case because his future candidacy is too uncertain.

"Wisconsin's interest in safeguarding even an appearance of bias is stronger than any of the public financing statutes considered by courts to date," Conley wrote in the Right to Life case, and because the law is narrowly tailored to achieve that, it should stand.

The opinion summarized an extensive body of federal cases on public campaign finance laws, but also noted that the U.S. Supreme Court is considering an appeal of an Arizona law, and that its ruling could undermine his own.

"This is nothing more than a speed bump before federal consideration," said Prosser's campaign manager, Brian Nemoir.

The Impartial Justice Act was adopted amid concerns about the bitter 2007 and 2008 Supreme Court campaigns, which cost about $6 million each, or quadruple the previous record.

Under the system, candidates who eschew private fundraising get public funds of $100,000 for the primary and $300,000 for the general election. The candidates on Tuesday's ballot, Prosser and Kloppenburg, each opted for public financing, which has cost the state about $900,000.



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