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Wisconsin Right to Life, Inc. v. Barland: Permanent Injunction

February 3, 2015
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On January 30, the District Court for the Eastern District of Wisconsin issued a permanent injunction that prohibits enforcement of several Wisconsin campaign finance statutes and administrative rules.1 The injunction was issued pursuant to last year’s Seventh Circuit Court of Appeals decision in a lawsuit filed by Wisconsin Right to Life (“Barland II”).

Highlights of the court’s permanent injunction include:

Corporate independent disbursements permitted. The Government Accountability Board (the “G.A.B.”) may not enforce Wisconsin’s statutory prohibition on corporate sponsorship of independent expenditures. Although Citizens United struck down such prohibitions in 2010 and the G.A.B. has abided by the U.S. Supreme Court’s decision, Wisconsin’s statute has never been repealed. Corporations are still prohibited from contributing to candidates, traditional political action committees (“PACs”) and political party committees.

No limits on PAC and conduit solicitation expenses. Wisconsin’s statutory limit on the amount a corporation may spend to solicit contributions to a PAC or conduit may not be enforced.

Chapter 11 regulates only express advocacy. As applied to political speakers other than candidates or political parties, Chapter 11 permits the G.A.B. to regulate only express advocacy and its functional equivalent. The G.A.B. may not administer or civilly enforce Chapter 11 provisions against persons engaged in issue advocacy. Further, the G.A.B. may not criminally investigate or prosecute those engaged in issue advocacy for violations of Chapter 11.

The G.A.B. may not enforce administrative rules that regulate issue advocacy. In 2010, the G.A.B. adopted an administrative rule that established reporting requirements for issue advocacy communications made in the 30-day period prior to a primary election or in the 60-day period prior to a general election. The G.A.B.’s action prompted three separate lawsuits and ten days after the rule’s promulgation, the G.A.B. entered into a stipulation in which it agreed not to enforce the rule. Although the rule was never repealed, the G.A.B. is now enjoined from enforcing the portion of GAB 1.28(3)(b) that regulates issue advocacy.

Independent disbursement reporting must be limited. Going forward, PAC reporting requirements may be triggered only for organizations that have the major purpose of express advocacy such as super PACs or independent expenditure-only PACs focused on Wisconsin state elections. As a result, the G.A.B. is likely to issue guidance on new reporting requirements, including how it will evaluate an organization’s “major purpose.”

Oath for independent disbursements still required. An organization that makes independent disbursements must continue to file an oath with the G.A.B. indicating that its spending is not coordinated with a candidate.

48 hour reporting of late contributions and disbursements still required. Wisconsin Right to Life challenged the 24-hour reporting requirement for disbursements of $20 or more and contributions of $500 made or received within 15 days of an election. But the Legislature changed the reporting deadline to 48 hours after the lawsuit was filed. As a result, the Seventh Circuit did not rule on this reporting requirement.

30 second radio ads exempt from attribution and disclaimer requirements. Wisconsin statutes require each communication by a political committee to contain an attribution i.e., a “paid for” line. G.A.B. rules also require an independent disbursement communication to contain a lengthy disclaimer indicating that it was not coordinated with a candidate. While Wisconsin Right to Life challenged only the G.A.B. rule requiring disclaimers, the court enjoined the enforcement of both attribution and disclaimer requirements in radio ads that are 30 seconds or less. The G.A.B. may issue further guidance regarding its interpretation of the order and how it will enforce Wisconsin’s attribution and disclaimer requirements going forward. If it does not, organizations making independent disbursements should consult the G.A.B. before eliminating the “paid for” line from 30 second radio ads. 

The district court’s order requires the G.A.B. to post on its website the court orders and opinions that have been issued in this case. As noted above, it is likely that the G.A.B. will also issue additional guidance regarding changes to some of its practices and procedures regarding campaign finance regulation.

1 See Wisconsin Right to Life, Inc. v. Barland, Case No. 10-C0669.

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