Wisconsin Right to Life Lauds Federal Court Decision on Free Speech

Monday, February 2, 2015

Wisconsin Right to Life Lauds Federal Court Decision on Free Speech

“This is a great day for free speech,” stated Heather Weininger, Executive Director of Wisconsin Right to Life. “After an almost five-year battle involving two appeals to the Chicago-based Seventh Circuit Court of Appeals, a federal district court in Milwaukee has entered its second declaratory judgment and permanent injunction, and its final judgment, applying First Amendment principles to Wisconsin campaign-finance law. In effect, this sweeping decision protects 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 at election time.”

Wisconsin Right to Life, Inc., and Wisconsin Right to Life State Political Action Committee, challenged multiple Wisconsin campaign-finance law provisions as vague and overbroad, as applied and facially.

The Jan. 30 order by Senior District Judge Charles Clevert, a Clinton appointee to the bench, 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.

“Consistent with the Seventh Circuit’s 2014 opinion in Wisconsin Right to Life, Inc. v. Barland (“Barland-II”), the district court strikes down Wisconsin law triggering political-committee and political-committee-like burdens: The critical parts of Wisconsin’s statutory committee-or-political-committee definition, GAB 1.28, and GAB 1.91,” continued Weininger.

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.’”

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’s order also enjoins:

• Wisconsin’s ban on corporate disbursements, because it violates the First Amendment.
• 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.
• Wisconsin’s regulatory attribution and disclaimer requirements as applied to radio ads of 30 seconds or fewer, because they take up most of the 30 seconds.
• Wisconsin’s limit on what organizations such as WRTL spend to solicit contributions to their own political committees.

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://gab.wi.gov.

“We could not be happier with this astute decision which affirms our rights under the First Amendment,” stated Weininger. “This is a great day for free speech."

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Media Contact: Heather Weininger 414-778-5780