Wisconsin Right to Life v. Barland I & II
(Dec. 12, 2011 & May 14, 2014 respectively)
After years of court battles led by Wisconsin Right to Life, the Chicago-based Seventh Circuit Court of Appeals and a federal district court in Milwaukee ensured with Wisconsin Right to Life v. Barland I & II that First Amendment principles were applied to Wisconsin campaign-finance law. In effect, their sweeping decisions protect the free speech of organizations like Wisconsin Right to Life and is a victory for those, regardless of political party or persuasion, who wish to participate in public debate and provide information on the issues they care about.
Highlights:
Wisconsin’s corporate-disbursement ban, which WRTL challenged, is unconstitutional as applied and facially under the Supreme Court’s 2010 decision in Citizens United v. FEC. This was not a close call but a sweeping outcome.
Wisconsin law triggering political-committee and political-committee-like burdens for WRTL is unconstitutional as applied and facially under Supreme Court case law. The Government Accountability Board (GAB) asserted that pages of Citizens United upholding non-political committee reporting requirements for federally-defined electioneering communications allow Wisconsin to trigger onerous political-committee burdens for WRTL. The court ruled that GAB is wrong.
GAB’s regulatory attribution and disclaimer requirements are unconstitutional as applied to broadcast ads of 30 seconds or fewer and expressed doubts about whether the requirements are constitutional at all. The lengthy attributions and disclaimers take up most of the time within a radio ad and leave little room for WRTL-SPAC’s message.
The limit on what corporations spend to solicit contributions for their separate political committees is facially unconstitutional.
The Jan. 30, 2015 order by Senior District Judge Charles Clevert permanently enjoins Government Accountability Board (“GAB”) members and Milwaukee County district attorney John Chisholm from:
Administering or civilly enforcing unconstitutional Wisconsin law against any person or combination of two or more persons, or
Criminally investigating or prosecuting (or referring for investigation or prosecution) any such person or persons under unconstitutional Wisconsin law.
The district court holds that Buckley v. Valeo, a 1976 U.S. Supreme Court opinion, “government may trigger political-committee or political-committee-like burdens only for ‘organizations’ that (a) are ‘under the control of a candidate’ or candidates in their capacities as candidates, or (b) have the ‘the major purpose’ of express advocacy under Buckley. Referring to organizations that are not under the control of any candidate(s) in their capacities as candidates, Barland-II holds that Wisconsin may trigger political-committee or political-committee-like burdens only for organizations that have the ‘major purpose’ of ‘express advocacy.’”
Wisconsin law regulating speech based on whether it “supports or condemns” candidates’ positions on issues, stances on issues, and public records, because “supports or condemns” is unconstitutionally vague.
The district court also limits related, vague Wisconsin law regarding what has the “purpose of influencing” elections to Buckley express advocacy or to appeal-to-vote speech (f/k/a the “functional equivalent of express advocacy”), yet appeal-to-vote speech is not a form of express advocacy. So this holding does not affect the principle that “Wisconsin may trigger political-committee or political-committee-like burdens only for organizations that have the ‘major purpose’ of ‘express advocacy.’” Those who incorrectly believe that a perceived appeal-to-vote test is a form of express advocacy wish to expand when government may trigger political-committee(-like) burdens, thereby increasing the power of GAB to regulate speech.
The district court orders GAB to make the Seventh Circuit opinions and the district-court order available to the public free of charge on the homepage of GAB’s website. The opinions and order are at http://www.gab.wi.gov/node/3543.