In an 88-page decision, the U.S. Court of Appeals for the 7th Circuit struck down a number of provisions under Wisconsin’s campaign finance law, as well as rules issued by the Government Accountability Board. The case is Wisconsin Right to Life v. Barland.
Judge Diane Sykes, writing for the three-judge majority, began the decision by providing a comprehensive history of Wisconsin’s campaign finance law and U.S. Supreme Court decisions addressing challenges to similar federal laws. Judge Sykes then analyzed each of the laws and rules challenged by the plaintiffs in the case.
Wisconsin Campaign Finance Laws and Rules Ruled Unconstitutional
Wisconsin Right to Life sued the Government Accountability Board (GAB) and challenged a number of Wisconsin’s existing campaign finance laws and rules promulgated by the Government Accountability Board as a violation of the First Amendment.
Specifically, Wisconsin Right to Life challenged the following campaign finance laws and rules:
- Wisconsin’s law banning political spending by corporations and unions (Wis. Stat. § 11.38(1)(a)1);
- Wisconsin’s law placing a cap on corporate fundraising for an affiliated political action committee (Wis. Stat. § 11.38(1)(a)3);
- GAB’s rule placing a disclaimer requirement under GAB §1.42(5);
- Definitions by the legislature and GAB relating to “political purposes” and “political committee” (Wis. Stat. § 11.01(16) and GAB § 1.28(1)(a));
- GAB’s rule which treats issue advocacy during the 30/60 day preelection period as fully regulable express advocacy if it mentions a candidate (GAB § 1.28(3)(b);
- GAB’s rule which imposes PAC-like registration, reporting, and other requirements on all organizations that make independent disbursements (GAB § 1.91).
The court struck down each of these law and rules as unconstitutional.
Wisconsin’s Law Banning Spending by Corporations and Unions
The most significant challenge was to Wisconsin’s law banning political spending by corporations, in light of the U.S. Supreme Court’s landmark decision, Citizens United v. FEC.
In Citizens United, a non-profit corporation produced a film critical of Hillary Clinton, who was a presidential candidate in the 2008 primary election. To promote the movie, the corporation produced ads for television and cable networks. However, the federal campaign finance law (Bipartisan Campaign Reform Act of 2002) made it a crime to disseminate the ads and the movie if they qualified as express advocacy or its equivalent. Citizens United sued, arguing that the corporate speech ban and the disclosure and disclaimer requirements for electioneering were unconstitutional.
The U.S. Supreme Court struck down the federal law banning corporations and unions from spending on elections, as long as the expenditures are done without coordinating with the candidates.
Judge Sykes expressed her dismay that the Wisconsin Legislature has failed to amend the law in light of Citizens United. According to Judge Sykes, “Citizens United has obvious and significant implications for Chapter 11, so it comes as a bit of a surprise that the Wisconsin legislature has not amended the statute to account for the changes wrought by the decision.”
The court next struck down Wisconsin’s law (Wis. Stat. § 11.38(1)(a)3), which capped the amount a corporation could spend to solicit contributions to an affiliated PAC. The original cap was $500, but the Wisconsin legislature this year amended the law (2013 Wisconsin Act 153, § 21m) to $20,000 or 20 percent of the prior year’s contributions. The court held that despite the latest amendment to the law increasing the cap, the law is still unconstitutional.
The court went on to analyze the rest of the regulations and rules challenged by the plaintiffs.