AB843: Bill Text Engrossed

The bill also provides that, if the ethics board refuses or otherwise fails to authorize an investigation or a district attorney fails to initiate a prosecution with respect to any violation of the prohibition created by the bill within 30 days after receiving a verified complaint alleging such a violation, the person making the complaint may bring a lawsuit to recover a forfeiture on behalf of the state. If the person making the complaint prevails, the bill provides that the court may require the defendant to pay the complainant's attorney fees and costs, but any forfeiture recovered must be paid to the state. If the court finds that a lawsuit was frivolous, the court must award fees and costs to the defendant. The bill provides that no complaint alleging a violation of the prohibition created by the bill may be filed during the period beginning 120 days before a general or spring election or the date that a special election is ordered and ending on the date of that election against a candidate who files a declaration of candidacy to have his or her name appear on the ballot at that election.

Nonseverability

Currently, if any part of an act is found by a court to be invalid, those parts that are valid are severed from the invalid part and the severed parts continue in force. This bill provides that, if any part of this bill relating to the reporting of expenditures for mass communications made independently of candidates and the adjustment of contribution limits in response to these expenditures or in response to excess disbursements by candidates who decline to accept grants is unconstitutional, then all of those parts are void. In addition, the bill provides that if any part of the bill relating to doubling of individual and committee contribution limitations for candidates who participate in the Wisconsin election campaign fund or who file an affidavit to adhere to disbursement and self-contribution limits is unconstitutional, then all of those parts are void.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB843-engrossed, s. 1 Section 1. 5.02 (13) of the statutes is amended to read:

AB843-engrossed,17,7 5.02 (13) "Political party" or "party" means a state committee registered under s. 11.05 and organized exclusively for political purposes under whose name candidates appear on a ballot at any election, and all county, congressional, legislative, local, and other affiliated committees authorized to operate under the same name. For purposes of ch. 11, the term does not include a legislative campaign committee or a committee filing an oath under s. 11.06 (7).

AB843-engrossed, s. 2 Section 2. 5.05 (1) (e) of the statutes is amended to read:

AB843-engrossed,18,6 5.05 (1) (e) Delegate to its executive director the authority to issue a subpoena under par. (b), apply for a search warrant under par. (b), commence an action under par. (d), intervene in an action or proceeding under sub. (9), issue an order under s. 5.06, exempt a polling place from accessibility requirements under s. 5.25 (4) (a), exempt a municipality from the requirement to use voting machines or an electronic voting system under s. 5.40 (5m), approve an electronic data recording system for maintaining poll lists under s. 6.79, or authorize nonappointment of an individual who is nominated to serve as an election official under s. 7.30 (4) (e), or make a determination under s. 11.065 (3), subject to such limitations as the board deems appropriate.

AB843-engrossed, s. 3 Section 3. 5.066 of the statutes is created to read:

AB843-engrossed,18,8 5.066 Complaints and decision-making procedure. (1) In this section:

AB843-engrossed,18,11 (a) "Election official" includes any board of election commissioners under s. 7.20 or governing body of a local governmental unit that has the responsibility to administer the election laws.

AB843-engrossed,18,12 (b) "Local governmental unit" has the meaning given under s. 16.97 (7).

AB843-engrossed,18,13 (c) "Working day" has the meaning given in s. 227.01 (14).

AB843-engrossed,18,20 (2) Any person may file a verified complaint with the executive director of the board alleging a violation of the election laws. The executive director shall investigate the complaint unless the executive director finds the complaint to be clearly without merit. The executive director may, on his or her own motion or upon direction of the board, investigate any potential violation of the election laws whenever the executive director has probable cause to believe that a violation has occurred.

AB843-engrossed,19,2 (3) If the complaint concerns a question as to whether an election official or a private person is acting in conformity with the law or rules of the board, the person filing the complaint shall serve a copy of the complaint upon that official or private person and that official or private person shall be a party to the case. An election official or private person may move to dismiss a complaint if it is clearly without merit. If the executive director finds, in response to a motion, that a complaint is clearly without merit, the executive director shall dismiss the complaint.

AB843-engrossed,19,5 (4) If the executive director does not dismiss a complaint, the executive director shall issue a proposed decision, which shall include findings of fact and conclusions of law and may include an order under sub. (5).

AB843-engrossed,19,7 (5) The executive director may order an election official or a private person to act in conformity with the election laws or rules of the board.

AB843-engrossed,19,19 (6) The executive director may, in the discharge of his or her functions under this section and upon notice to any party being investigated, subpoena and bring before him or her any person in the state and require the production of any papers, books, or other records relevant to an investigation. A circuit court may by order permit the inspection and copying of the accounts and the depositor's and loan records at any financial institution as defined in s. 705.01 (3) doing business in the state to obtain evidence of any violation of ch. 11 upon showing by the executive director of probable cause to believe there is a violation and that such accounts and records may have a substantial relation to the violation. In the discharge of his or her functions under this section, the executive director may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court.

AB843-engrossed,19,23 (7) If the executive director issues a decision under sub. (4) that contains an order under sub. (5), the order is effective upon service of the order notwithstanding any appeal to the board under sub. (8), except that the executive director may stay such an order pending an appeal to the board.

AB843-engrossed,20,7 (8) Any party aggrieved by a proposed decision under sub. (4) may appeal the proposed decision to the board within 20 days after service of a copy of the decision upon the party. If no appeal is filed within 20 days of service of a copy of a proposed decision upon each party to the case in which the decision is made, the decision is final and becomes the decision of the board. In appealing a decision of the executive director, the appellant shall indicate in its appeal whether the appellant contests any finding of fact made by the executive director. If an appellant does not contest a finding of fact, that finding is conclusive against the appellant, unless the finding of fact is modified by the board.

AB843-engrossed,20,18 (9) If a proposed decision of the executive director is appealed to the board, the board shall hear the appeal at its next meeting occurring at least 3 working days after the appeal is received by the board. In reviewing the decision of the executive director, the board is not bound by any finding of fact or conclusion of law made by the executive director. After hearing the appeal, the board may issue a decision, which shall include findings of fact and conclusions of law. In its decision, the board may affirm, modify or reverse an order issued by the executive director under sub. (5), and may order an election official or a private person to act in conformity with the election laws or rules of the board. If the board does not modify or reverse a decision of the executive director at the meeting at which an appeal of a decision is heard, the decision is affirmed.

AB843-engrossed,20,22 (10) If a person aggrieved by a decision issued under sub. (4) that contains an order under sub. (5) appeals the decision to the board and the board modifies the order, the modified order is effective upon service, except that the executive director may stay such an order pending judicial review under s. 227.57.

AB843-engrossed,21,3 (11) The decision of the board in any contested case arising under this section is subject to review as provided in s. 227.57. In seeking judicial review of a decision of the board, the appellant shall indicate in its petition for review whether the appellant contests any finding of fact made by the executive director or the board that is not conclusive against the appellant. If the appellant does not contest any finding of fact made by the board, that finding is conclusive against the appellant.

AB843-engrossed,21,6 (12) (a) This section does not apply to any complaint brought by an election official or private person in which the board or the executive director is alleged to have violated the law.

AB843-engrossed,21,8 (b) This section does not apply to any matter arising in connection with a recount under s. 9.01.

AB843-engrossed,21,11 (13) The board shall periodically examine and review decisions of the executive director and the board under this section with a view to clarifying and improving the administration of the election laws of this state.

AB843-engrossed, s. 4 Section 4. 7.08 (2) (cm) of the statutes is amended to read:

AB843-engrossed,21,23 7.08 (2) (cm) As soon as possible after the canvass of a special primary, or the date that the primary would be held, if required, transmit to the state treasurer a certified list of all eligible candidates for state office who have filed applications under s. 11.50 (2) and whom the board determines to be eligible to receive a grant from the Wisconsin election campaign fund prior to the election. The board shall also transmit a similar list of candidates, if any, who have filed applications under s. 11.50 (2) and whom the board determines to be eligible to receive a grant under s. 11.50 (1) (a) 2. 1. b. after the special election. The list shall contain each candidate's name, the mailing address indicated upon the candidate's registration form, the office for which the individual is a candidate and the party or principle which he or she represents, if any.

AB843-engrossed, s. 5 Section 5. 8.35 (4) (a) 1. a. and b. of the statutes are amended to read:

AB843-engrossed,22,8 8.35 (4) (a) 1. a. Donated to the former candidate's local or state political party if If the former candidate was a partisan candidate or, donated to the former candidate's local or state political party, donated to the a charitable organization of the former candidate's choice or the charitable organization chosen , or transferred to the board for deposit in the Wisconsin election campaign fund, as instructed by the former candidate or, if the former candidate left no instruction, by the former candidate's next of kin if the former candidate is deceased, or if no choice is made returned to the donors on a proportional basis; or

AB843-engrossed,22,14 b. If the former candidate was a nonpartisan candidate, donated to the a charitable organization of the former candidate's choice or the charitable organization chosen or transferred to the board for deposit in the Wisconsin election campaign fund, as instructed by the former candidate or, if the former candidate left no instruction, by the former candidate's next of kin if the former candidate is deceased; or

AB843-engrossed, s. 6 Section 6. 11.001 (2m) of the statutes is created to read:

AB843-engrossed,22,22 11.001 (2m) The legislature finds a compelling justification for minimal disclosure of all communications made near the time of an election that include the name or likeness of a candidate for state office to allow increased funding for such candidates based upon certain independent expenditures. This minimal disclosure burden is outweighed by the need to establish an effective funding mechanism for candidates for state office to effectively respond to certain independent expenditures that may impact an election for those offices.

AB843-engrossed, s. 7 Section 7. 11.01 (4m), (7) (b) 6. and (11m) of the statutes are created to read:

AB843-engrossed,23,4 11.01 (4m) "Communication" means a message transmitted by means of a printed advertisement, billboard, handbill, sample ballot, radio or television advertisement, telephone call, or mass mailing, or any medium that may be utilized for the purpose of disseminating or broadcasting a message, but not including a poll conducted solely for the purpose of identifying or collecting data concerning the attitudes or preferences of electors.

AB843-engrossed,23,6 (7) (b) 6. Any payment for the purpose of making a communication that has not been made on the closing date for submittal of a report under this chapter.

AB843-engrossed,23,17 (11m) "Independent expenditure" means an expenditure made for the purpose of making a communication that is made during the period beginning on the 30th day preceding a primary election for an office to be filled at a general, special, or spring election and the date of that general, special, or spring election or, if no primary is held, during the period beginning on the 60th day preceding a general, special, or spring election at which the office is filled and the date of that election; that contains a reference to a clearly identified candidate for an office specified in s. 11.31 (1) (a) to (d), (e), or (f) to be filled at that election; that is made without cooperation or consultation with such a candidate, or any authorized committee or agent of such a candidate; and that is not made in concert with, or at the request or suggestion of, such a candidate, or any authorized committee or agent of such a candidate.

AB843-engrossed, s. 8 Section 8. 11.01 (12s) of the statutes is repealed.

AB843-engrossed, s. 9 Section 9. 11.01 (13), (14), (17g) and (17r) of the statutes are created to read:

AB843-engrossed,23,21 11.01 (13) "Mass mailing" means the distribution of 50 or more pieces of substantially identical material.

AB843-engrossed,23,23 (14) "National political party committee" means a national committee as defined in 2 USC 431 (14).

AB843-engrossed,24,2 (17g) "Public access channel" means a channel that is required under a franchise granted under s. 66.0419 (3) (b) by a city, village, or town to a cable operator, as defined in s. 66.0419 (2) (b), and that is used for public access purposes, but does not include a channel that is used for governmental or educational purposes.

AB843-engrossed,24,4 (17r) "Public access channel operator" means a person designated by a city, village, or town as responsible for the operation of a public access channel.

AB843-engrossed, s. 10 Section 10. 11.05 (1) of the statutes is renumbered 11.05 (1) (a) and amended to read:

AB843-engrossed,24,14 11.05 (1) (a) Except as provided in s. 9.10 (2) (d), every committee, other than a personal campaign committee, and every political group subject to registration under s. 11.23 which that makes or accepts contributions, incurs obligations or makes disbursements in a calendar year in an aggregate amount in excess of $25 shall file a statement with the appropriate filing officer giving the information required by sub. (3). In the case of any committee other than a personal campaign committee, the statement shall be filed by the treasurer. A personal campaign committee shall register under sub. (2g) or (2r).

AB843-engrossed, s. 11 Section 11. 11.05 (1) (b) of the statutes is created to read:

AB843-engrossed,24,19 11.05 (1) (b) Every political group subject to registration under s. 11.23 which makes or accepts contributions, incurs obligations, or makes disbursements in a calendar year in an aggregate amount in excess of $100 shall file a statement with the appropriate filing officer giving the information required by sub. (3).

AB843-engrossed, s. 12 Section 12. 11.05 (2) of the statutes is renumbered 11.05 (2) (a) and amended to read:

AB843-engrossed,25,4 11.05 (2) (a) Except as provided in s. 9.10 (2) (d), every individual, other than a candidate or agent of a candidate, who accepts contributions, incurs obligations, or makes disbursements with respect to one or more elections for state or local office in a calendar year in an aggregate amount in excess of $25 shall file a statement with the appropriate filing officer giving the information required by sub. (3). An individual who guarantees a loan on which an individual, committee or group subject to a registration requirement defaults is not subject to registration under this subsection solely as a result of such default.

AB843-engrossed, s. 13 Section 13. 11.05 (2) (b) of the statutes is created to read:

AB843-engrossed,25,9 11.05 (2)(b) Every individual who accepts contributions, incurs obligations, or makes disbursements with respect to one or more referenda in a calendar year in an aggregate amount in excess of $100 shall file a statement with the appropriate filing officer giving the information required by sub. (3).

AB843-engrossed, s. 14 Section 14. 11.05 (3) (c) of the statutes is amended to read:

AB843-engrossed,25,14 11.05 (3) (c) In the case of a committee, a statement as to whether the committee is a personal campaign committee, a political party committee, a legislative campaign committee, a support committee, or a special interest committee.

AB843-engrossed, s. 15 Section 15. 11.05 (3) (o) of the statutes is repealed.

AB843-engrossed, s. 16 Section 16. 11.05 (3) (q) of the statutes is created to read:

AB843-engrossed,25,19 11.05 (3) (q) In the case of a political party committee, an indication of whether the committee is a state or national political party committee, or a state or national subunit or state or national affiliate of such a committee.

AB843-engrossed, s. 17 Section 17. 11.05 (7) of the statutes is amended to read:

AB843-engrossed,26,6 11.05 (7) Notwithstanding sub. (6), any Any individual or organization who or which has received property or funds which were not intended for political purposes in connection with an election for state or local office at the time of receipt may make contributions or disbursements from such property or funds in connection with an election for state or local office if the individual or organization complies with applicable provisions of sub. (1), (2) or (2g) as soon as such intent changes. For purposes of s. 11.06 (1), all property or funds which are in a registrant's the possession of such an individual or organization on the date of registration under this section shall be treated as received on the date that such intent changes so that the property or funds are to be used for political purposes in connection with an election for state or local office.

AB843-engrossed, s. 18 Section 18. 11.05 (9) (b) of the statutes is amended to read:

AB843-engrossed,26,13 11.05 (9) (b) An individual who or a committee or group which receives a contribution of money and transfers the contribution to another individual, committee, or group while acting as a conduit is not subject to registration under this section unless the individual, committee, or group transfers the contribution to a candidate or a personal campaign, legislative campaign, political party, or support committee.

AB843-engrossed, s. 19 Section 19. 11.05 (12) (b) of the statutes is amended to read:

AB843-engrossed,26,23 11.05 (12) (b) Except as authorized under sub. (13), a committee, group or individual other than a candidate or agent of a candidate shall comply with sub. (1) or (2) no later than the 5th business day commencing after receipt of the first contribution by such committee, group or individual, and before making any disbursement. No committee, group or individual, other than a candidate or agent of a candidate, may accept any contribution or contributions exceeding $25 in the aggregate the amount specified in sub. (1) or (2) during a calendar year at any time when the committee, group or individual is not registered under this section except within the initial 5-day period authorized by this paragraph.

AB843-engrossed, s. 20 Section 20. 11.06 (1) (intro.) of the statutes is amended to read:

AB843-engrossed,27,7 11.06 (1) Contents of report. (intro.) Except as provided in subs. (2), (3) and (3m) and ss. 11.05 (2r) and 11.19 (2), each registrant under s. 11.05 shall make full reports, upon a form prescribed by the board and signed by the appropriate individual under sub. (5), of all contributions received, contributions or disbursements made, and obligations incurred. Each report shall contain the following information, covering the period since the last date covered on the previous report, unless otherwise provided:

AB843-engrossed, s. 21 Section 21. 11.06 (1) (cm) of the statutes is created to read:

AB843-engrossed,27,15 11.06 (1) (cm) If a candidate wishes to make disbursements using contributions that are exempt from the limitations under s. 11.26 (9), as provided under s. 11.26 (9m), a separate schedule itemizing those contributions that the candidate intends to use to make disbursements that are exempt from those limitations. The separate schedule may include contributions previously reported by the candidate and, if so, shall indicate the amounts and dates on which those contributions were reported as received.

AB843-engrossed, s. 22 Section 22. 11.06 (1) (dm) of the statutes is created to read:

AB843-engrossed,27,20 11.06 (1) (dm) A separate schedule itemizing those contributions that were transferred to the registrant by a conduit, together with the name and address of the conduit, the date and amount of each transfer, and the cumulative total amount transferred to the registrant by the conduit for the calendar year.

AB843-engrossed, s. 23 Section 23. 11.06 (2) of the statutes is amended to read:

AB843-engrossed,28,6 11.06 (2) Disclosure of certain indirect disbursements. Notwithstanding sub. (1), if a disbursement is made or obligation incurred by an individual other than a candidate or by a committee or group which is not primarily organized for political purposes, and the disbursement does not constitute a contribution to any candidate or other individual, committee, or group, the disbursement or obligation is required to be reported under this section only if the purpose is to expressly advocate the election or defeat of a clearly identified candidate or the adoption or rejection of a referendum. The exemption provided by this subsection shall in no case be construed to apply to a political party, legislative campaign, personal campaign, or support committee.

AB843-engrossed, s. 24 Section 24. 11.06 (3) (b) (intro.) of the statutes is amended to read:

AB843-engrossed,28,11 11.06 (3) (b) (intro.) Notwithstanding sub. (1), a A nonresident registrant shall report on a form prescribed by the board the applicable information that makes a report under sub. (1) shall ensure that the report separately states information under sub. (1) concerning all of the following, in a manner prescribed by the board:

AB843-engrossed, s. 25 Section 25. 11.06 (7m) (a) of the statutes is amended to read:

AB843-engrossed,29,2 11.06 (7m) (a) If a committee which was registered under s. 11.05 as a political party committee or legislative campaign committee supporting candidates of a political party files an oath under sub. (7) affirming that it does not act in cooperation or consultation with any candidate who is nominated to appear on the party ballot of the party at a general or special election, that the committee does not act in concert with, or at the request or suggestion of, such a candidate, that the committee does not act in cooperation or consultation with such a candidate or agent or authorized committee of such a candidate who benefits from a disbursement made in opposition to another candidate, and that the committee does not act in concert with, or at the request or suggestion of, such a candidate or agent or authorized committee of such a candidate who benefits from a disbursement made in opposition to another candidate, the committee filing the oath may not make any contributions in support of any candidate of the party at the general or special election or in opposition to any such candidate's opponents exceeding the applicable amounts specified in s. 11.26 (1), (1m), (2), and (2m), except as authorized in par. (c).

AB843-engrossed, s. 26 Section 26. 11.06 (7m) (b) of the statutes is amended to read:

AB843-engrossed,29,9 11.06 (7m) (b) If the committee has already made contributions in excess of the applicable amounts specified in s. 11.26 (1), (1m), (2), or (2m) at the time it files an oath under sub. (7), each candidate to whom contributions are made shall promptly return a sufficient amount of contributions to bring the committee in compliance with this subsection and the committee may not make any additional contributions in violation of this subsection.

AB843-engrossed, s. 27 Section 27. 11.06 (7m) (c) of the statutes is amended to read:

AB843-engrossed,29,17 11.06 (7m) (c) A committee filing an oath under sub. (7) which desires to change its status to a political party committee or legislative campaign committee may do so as of December 31 of any even-numbered year. Section 11.26 does not apply to contributions received by such a committee prior to the date of the change. Such a committee may change its status at other times only by filing a termination statement under s. 11.19 (1) and reregistering as a newly organized committee under s. 11.05.

AB843-engrossed, s. 28 Section 28. 11.06 (11) (bm) of the statutes is created to read:

AB843-engrossed,29,20 11.06 (11) (bm) The board shall prescribe a separate schedule for reporting under s. 11.06 (1) by transferees of contributions transferred by conduits.

AB843-engrossed, s. 29 Section 29. 11.065 of the statutes is created to read:

AB843-engrossed,30,12 11.065 Independent expenditures. (1) (a) If any person makes one or more communications to be financed with independent expenditures exceeding $2,000 in the aggregate, that person shall file a report with the board on a form prescribed by the board for this purpose. The report shall be made whenever the person makes one or more communications financed or to be financed with independent expenditures exceeding $2,000 in the aggregate and whenever the person makes one or more additional communications financed or to be financed with independent expenditures exceeding $2,000 in the aggregate that are not identified in a previous report under this subsection. Reports required under this subsection shall be filed within 7 days after the date that communications financed with independent expenditures exceeding $2,000 in the aggregate that are not identified in a previous report are made or, if communications are made within 15 days of the date of a spring primary or election or within 15 days of a September or special primary or general or special election, then within 24 hours after the date that communications financed with independent expenditures exceeding $2,000 in the aggregate that are not identified in a previous report are made.

AB843-engrossed,30,20 (b) If a person makes or incurs an obligation to make a single independent expenditure for the purpose of financing communications that are to be made on more than one day, the person may report the entire expenditure under par. (a) for the day on which the person makes the first communication financed by the expenditure, or the person may report for each day on which the person makes one or more communications financed by the expenditure the proportionate amount of the expenditure attributable to the cost of the communication or communications made on that day.

AB843-engrossed,30,21 (2) Each report filed under sub. (1) shall contain the following information:

AB843-engrossed,30,23 (a) The name of each candidate who is identified in each communication financed by an independent expenditure.

AB843-engrossed,31,3 (b) A statement as to whether the communication is intended to support or oppose any candidate who is identified under par. (a) and if so, the name of that candidate.

AB843-engrossed,31,6 (c) The total amount or value of the independent expenditure and the cumulative aggregate independent expenditures made by the person with respect to that election.

AB843-engrossed,31,14 (3) If a person who makes an independent expenditure does not indicate whether an independent expenditure is made against a candidate or for an eligible candidate's opponent or if the report under sub. (2) reasonably appears to be incorrect, the board may obtain a copy of the communication and, after examination, determine whether the communication was intended to support or oppose a candidate for purposes of s. 11.31 (3r) (a). Any determination made by the board under this subsection applies solely for the purpose of administration of s. 11.31 (3r) (a).