More advocacy groups are joining the challenge to regulations proposed by Wisconsin’s Government Accountability Board (GAB).
The Center for Competitive Politics (CCP) will seek friend-of-the-court status to file a brief in the merits stage of the case. Wisconsin Club for Growth and One Wisconsin Now will argue at a hearing Aug. 12 that the state should be prevented from enforcing a new administrative rule that would require political speakers to register a committee and report funding for their commentary on matters of public policy.
Yesterday, Wisconsin Right to Life filed a similar challenge. The regulations are set to go into effect Aug. 16 (groups would have to register with the GAB by Aug. 13).
“This rule is an overly broad attempt to hamstring political speakers with cumbersome rules and regulations,” said CCP vice president Stephen M. Hoersting, who testified in public hearings before the GAB on the rulemaking in 2008. “The state is attempting to redefine campaign finance rules in defiance of both the Wisconsin legislature and the U.S. Supreme Court.”
Federal reporting requirements recently approved by the Supreme Court are triggered upon spending $10,000 for broadcast communications that mention a candidate. The state’s rule (Rule 1.28), on the other hand, requires speakers not only to report but to register a committee when $25 is spent on any communication that mentions a candidate’s record within the 30-and 60-day periods-including those on websites or in personal e-mail.
Wisconsin Club for Growth and One Wisconsin Now—opponents on most every issue but this one—have joined together and filed suit in the United States District Court to enjoin the rule as an impermissible restriction on core political speech.
“Wisconsin’s legislature has declined to enact bills that would expand the definition of ‘political purpose,’ 29 times in the last 11 years,” said CCP president Sean Parnell. “McCain-Feingold’s federal restrictions on ‘electioneering communications,’ flawed as they are, were premised on congressional findings and academic studies that were themselves questionable; but at least Congress had them. The GAB relies on no such findings and actually usurps the authority of Wisconsin’s legislators to expand speech restrictions beyond what is permitted by recent Supreme Court holdings.”
Under G.A.B. Rule 1.28, speakers spending $25 or more in a calendar year would be required to establish a separate depository account and transfer general treasury funds into the account before speaking. Speakers would be forced to register with the GAB, pay a $100 filing fee, file an oath that their communications will be independent prior to speaking, and comply with periodic reporting requirements.
The irony in the Wisconsin board’s ruling is that it is a Wisconsin case that largely set the standard for regulation in this area.
In FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007), the Supreme Court held that governments may burden only that speech which is “susceptible of no reason interpretation other than as an appeal to vote” for or against a candidate. It also limited regulation to Congress’s findings, that is, to broadcast communications, not to communications in print or e-mail. On the contrary, the GAB’s rule would regulate any communication within 30 or 60 days of an election that “supports [a] candidate’s position or stance on issues.” Requiring speakers to register a committee on this standard burdens issue advocacy and public lobbying of legislative officials and is facially unconstitutional.
“Laws burdening speech, as this rule would, are subject to strict scrutiny,” said CCP vice president of policy Allison R. Hayward. “The GAB’s rule is no mere reporting requirement: it requires speakers to establish bank accounts and register a committee. Requiring speakers to register a PAC to engage in independent issue advocacy is unconstitutional.”
The Supreme Court held in Citizens United v. Federal Election Commission that “PACs are burdensome alternatives; they are burdensome to administer and subject to extensive regulations.”
Attorneys for the Wisconsin Club for Growth and One Wisconsin Now-Mike Wittenwyler, Hannah Renfro, and Brady Williamson of the law firm Godfrey & Kahn, S.C.-will present oral argument to district court judge William M. Conley on why G.A.B. Rule 1.28 should be enjoined at 8:30 a.m. Aug. 12. The case is Wisconsin Club for Growth, Inc., et al v. Myse, 10-CV-00427-wmc (W.D. WI, Aug. 2, 2010).
