BREAKING: Appeals court declares portions of Wisconsin campaign finance law unconstitutional

M.D. Kittle
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May 14, 2014 7:36 PM
BREAKING: Appeals court declares portions of Wisconsin campaign finance law unconstitutional
Part 60 of 60 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

Madison, Wis. – In a ruling with stunning implications on political speech in Wisconsin and beyond, the 7th Circuit U.S. Court of Appeals declared portions of state campaign finance laws restricting issue ads unconstitutional.

The 88-page decision handed down late Wednesday afternoon sides with Wisconsin Right to Life, Inc. and its state political action committee, which sued to block the enforcement of multiple state statutes and rules against groups that spend money for political speech independently of candidates and parties – so called issue advocacy groups.

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UNCONSTITUTIONAL: The 7th Circuit U.S. Court of Appeals has declared major sections of Wisconsin’s campaign finance law unconstitutional. The decision could have major implications on Wisconsin’s secret John Doe probe into dozens of conservative groups.

The 7th Circuit’s ruling, legal experts tell Wisconsin Reporter, could cut the legs out from under a secret John Doe investigation into dozens of conservative organizations on a theory that the groups illegally coordinated with Gov. Scott Walker’s campaign during the state’s partisan recall elections.

In short, the court, on a 3-0 decision, found the state’s corporate-speech ban, the ban on political spending by corporations, unconstitutional under the U.S. Supreme Court’s 2010 Citizens United ruling that opened up previous restrictions on campaign finance. The appeals court remanded the case to the district court to issue a permanent injunction consistent with the opinion.

The court also ruled:

  • The cap on the amount a corporation may spend on fundraising for an affiliated political committee, is unconstitutional.
  •  The lengthy disclaimer requirement under state Government Accountability Board’s regulation is unconstitutional as applied to 30-second radio ads and ads of shorter duration.
  • The statutory definition of “political purposes,” section 11.01(16), and the regulatory definition of “political committee,” GAB § 1.28(1)(a), are unconstitutionally vague and overbroad in the sense meant by federal court precedent. As applied to political speakers other than candidates, their campaign committees, and political parties, the definitions are limited to express advocacy.

And that’s where the John Doe investigation may come under further scrutiny.

The probe, launched in August 2012 by Milwaukee County District Attorney John Chisholm, a Democrat, and involving the Government Accountability Board, the state’s campaign and elections watchdog, is the subject of a federal lawsuit filed by conservative activist Eric O’Keefe and his Wisconsin Club for Growth.

Last week, U.S. District Court Judge Rudolph Randa shut down the probe, asserting that the prosecutors’ application of the law was “simply wrong.” His ruling seems to agree with an earlier decision by John Doe presiding Judge Gregory A. Peterson, who earlier this year quashed several subpoenas sought by prosecutors because they had failed to show probable cause.

Randa’s decision is now being appealed before the 7th Circuit.

O’Keefe’s lawsuit contends that the John Doe investigation, featuring what sources have described as “paramilitary” pre-dawn raids on the homes and offices of several conservatives, has violated conservatives’ First Amendment rights. Beyond that, the lawsuit  asserts the prosecutors have no understanding of campaign finance law or have effectively made it up as they’ve gone along.

The prosecutors’ theory reportedly attempts to merge issue advocacy, which does not support or oppose a particular candidate, with express advocacy, which directly supports or opposes a candidate.

As Randa pointed out, there is no evidence to suggest the plaintiffs engaged in express advocacy, which comes with particular prohibitions on campaign coordination.

The appeals court in its ruling states a GAB rule that treats issue advocacy during the 30/60-day pre-election period as “fully regulable express advocacy if it mentions a candidate, is unconstitutional.”

“Similarly, GAB § 1.91, which imposes PAClike registration, reporting, and other requirements on all organizations that make independent disbursements, is unconstitutional as applied to organizations not engaged in express advocacy as their major purpose,” the court wrote.

That is precisely where the prosecutors in the John Doe appear to hang their legal hat.

Wisconsin Club for Growth previously took on the campaign finance regulations and won.

The club and an unlikely ally, liberal advocacy group One Wisconsin Now, also filed a lawsuit challenging the rules in federal court in Madison.

In 2010, the GAB agreed not to enforce several provisions of its rules, including its demand that the groups disclose their donors.

Wednesday’s appeals court ruling seems to further cement protections for anonymous speech under the First Amendment.

O’Keefe’s civil rights suit may test again whether GAB and the John Doe prosecutors have failed to follow through on GAB’s end of the bargain.

An attorney for Wisconsin Right to Life and its PAC declined to comment on Wednesday, saying he was still digesting the court ruling.

A spokesman for the Government Accountability Board did not immediately return an email seeking comment.

Contact M.D. Kittle at mkittle@watchdog.org