In the federal case of Koschnick v. Doyle, Jefferson County Circuit Judge Randy Koschnick formally complains about 2009 Wisconsin Act 89 Sec. 11.522(2), which requires judicial candidates who do not participate in the public financing scheme to emboss the following legend on their election literature:
This communication is paid for with money raised from private sources. This candidate has not agreed to abide by campaign contribution and spending limits.It reminds me of the Queen albums proudly declaring, "No Synths!" or a tin of Oklahoma gumbo: "This product made from only humanely electrocuted possums."
Of course those examples are voluntary but there's nothing unconstitutional either about required product labeling; look at your box of Count Chocula or your pack of Marlboro Lights. And politicians aren't much different nowadays from consumer products.
The politicians made it that way themselves and Wisconsin's regime of electing judges not only allows it but encourages it, to the detriment of any serious or meaningful discussion about the role of judges and the significance of past decisions of the courts.
(And the press, by and large, plays the willing accomplice.)
Koschnick knows this better than most, as he marketed himself using every right-wing cliché in the book and then focused his imaginary product on the classic bugaboos: God, gays, guns, and baby rapers.
Koschnick's complaint further alleges that "consistent with his past practice, [he] does not intend to rely on public campaign financing and does expect to expend funds raised from committees."
So, there. He's already in substantial compliance with Sec. 11.522(2) and he's not even running for anything yet (officially).
Nevertheless, Judge Koschnick believes — somewhat hyperbolically and to an extent disingenuously — that the Act "requires [non-participating candidates] to use language that is inappropriate and aggressive and intentionally a statement of a position, contrary to the First Amendment and is ultimately false speech."
That is, Koschnick doesn't want to be required to claim that, for example, Chief Justice Shirley Abrahamson "equated [her colleagues on the court] with violent sexual criminals," he just wants to remain free to make up nonsense like that on his own (which he did).
That's protected speech, as we recently learned that candidates for the Supreme Court have a constitutional right to lie and even when they exercise it and are caught lying, they cannot be disciplined.
And these findings are supposed to be encouraging for democracy. The conclusion is inescapable: Wisconsin voters clearly preferred the candidate who boldly lied to sit on their highest court of appeals.
In the present case it's false speech in the sense, Koschnick argues, that the "statement suggest[s] non-compliance with the law" (despite his asserting elsewhere in his complaint that the referenced campaign contribution and spending limits are unlawful).
The right honorable jurisprude from Jefferson is probably correct that the government can't force non-participating candidates to carry statements indicating such. In effect, that statement is saying, "This candidate has chosen to live outside the law" (which is where you must be the most honest, just like the song says).
But should you ask me, I don't think the Act goes far enough. There ought to be a whole series of required disclaimers: "'Judicial activism' is right-wing mumbo-jumbo for stuff I don't like but can't explain why to any acceptable degree of logical consistency" and "Surgeon General's Warning: Strict constructionism leads to absurd results."
If we're going to elect Supreme Court justices, then let's call a spade a spade and identify the farcical politicking at the front end.