Despite legal rulings Thursday that support a law that provides matching funds for Supreme Court candidates, in practice the law just doesn't have any teeth.
The law, the Impartial Justice Act, was supposed to provide up to $900,000 to Supreme Court candidates to rebut attack ads by special interests groups. But as the negative ads pile up, it's more and more apparent that the public financing plan isn't working as intended.
As of Thursday night, special interest groups have aired ads, mostly negative, worth more than $2.16 million, according to an analysis by the Brennan Center for Justice, and that doesn't include cable television markets. That compares with $438,000 spent on media by the candidates themselves.
The Kloppenburg campaign said last week that its media buyer reported about $4 million in ad buys scheduled up to the election.
The Brennan Center reported that "spending by non-candidate groups in this year's contest is likely to reach -- or surpass -- the levels seen in the record-setting election between then-Justice Louis Butler and challlenger (and now Justice) Micheal Gableman," a race in which special interests spent about $3.38 million.
But the ads haven't triggered any matching funds.
While incumbent Justice David Prosser and challenger JoAnne Kloppenburg agreed to a $300,000 campaign spending limit in the race and $100,000 in the primary, the "rescue funds" were supposed to be additionally available if special interest groups weighed in against them. And both have been targeted.
But the ads trigger the funds only if they meet the state's definition of "express advocacy" ads.
"If they don't say vote for or against a candidate, they are not considered express advocacy ads," says Government Accountability Board spokesman Mike Haas.
It's a huge loophole that the board tried to close with a rule that would have expanded the definition of an advocacy ad, but the state Supreme Court put a hold on the rule while a legal challenge by the Wisconsin Prosperity Network is pending in the high court. Arguments in the case are probably not going to be scheduled until the fall.
So all political action committees have to do is avoid using words like "vote for," "support," "elect," "reject," and so forth.
"Clearly, the independent committees have figured out that they can still run those types of ads without any candidates receiving matching funds," Haas says.
Ironically, a federal judge ruled Thursday that the matching funds passed constitutional muster.
When the next Supreme Court election comes around, the matter will likely be moot. While the public financing law will remain on the books until the Legislature decides to kill it, Gov. Scott Walker has moved to dry up the funding source in his budget. That would make it unlikely that any candidate would opt to use public financing because the pool of money would probably be gone before they got all their funds.
Both Prosser and Kloppenburg have said the law has allowed them to avoid the nasty business of fund-raising, which has let them do face-to-face campaigning that otherwise would not have been possible.
But it's clear in these final days of the campaign that the candidates' messages are being hijacked by groups that see this election as pivotal. Democrats, progressives and union backers see a Prosser defeat as a way to send a message to Walker that his attempts to strip public workers of union rights have electoral consequences. And Republicans and business interests see it as an epic struggle to keep their hard-won conservative majority.
"That's sort of the typical impact of well-intentioned campaign finance reform," Marquette University Law professor Rick Esenberg told me a few weeks ago. "Everybody was upset because of the ads these independent organizations ran. So what they decided to do, because it's all they could do, is basically set up a system that marginalized the candidates because they'll never be able to raise enough money to have their own voice be heard. That's what's going to happen if this turns into a competitive race. The independents will come in and they'll dominate the debate."