Bradley Smith, a former chair of the Federal Election Commission, has this op-ed in the December 19 issue of the Milwaukee Journal-Sentinel. Smith explains that public funding laws, to be constitutional, must avoid provisions that gives extra funding for publicly-funded candidates, when the publicly funded-candidate has an opponent who is not accepting public funding and who is the beneficiary of large independent expenditures. “Independent expenditures” means some sort of advertising allegedly on behalf of some candidate, but which has not been coordinated with the candidate.

The occasion for Smith’s op-ed is that Wisconsin recently enacted public funding for candidates for judicial office. The Wisconsin law provides for extra public funding, of the type that Smith argues violates the First Amendment. The basis for Smith’s opinion is the U.S. Supreme Court ruling in Davis v FEC, the decision that struck down the “millionaire’s amendment” in federal campaign law. That decision didn’t deal directly with public funding. Instead, it struck down part of the McCain-Feingold law that said contribution limits are substantially relaxed when a candidate has an opponent who is spending large amounts of money on his or her own campaign.