AB843: Bill Text Engrossed

4. Provides that in each year prior to a year in which an election for the office of justice of the supreme court is scheduled, an amount must be set aside from taxpayer donations to the general account sufficient to finance payment of the full amount of grants for which candidates for the office of justice qualify, and in each year prior to a year in which an election for the office of state superintendent of public instruction is scheduled, an amount must be set aside from taxpayer donations to the general account, after any set aside for the office of justice is made, sufficient to finance the full amount of grants for which candidates for the office of superintendent qualify. These amounts must be set aside before amounts are made available from the general account to finance the payment of grants to candidates for any other offices. Under the bill, if the balance in the fund is insufficient to set aside the required amounts, the entire balance in the fund is set aside.

5. Provides that a candidate for the office of state senator or representative to the assembly must receive contributions equal to only 7% of the authorized disbursement level for the office which the candidate seeks in order to qualify for a grant. The bill also provides that the contributions of $100 or less from individuals used by a candidate for any state office to determine eligibility for a grant must be made by individuals who reside in this state and, in the case of a candidate for legislative office, by individuals at least 50% of whom reside in a county having territory within the district in which the candidate seeks office.

Disposition of residual or excess funds

Under current law, residual funds remaining when a person who is required to register under the campaign financing law disbands or ceases incurring obligations, making disbursements, or accepting contributions or excess funds received by a registrant that may not be legally expended may generally be used for any lawful political purpose, returned to the original contributors, or donated to a charitable organization or the common school fund.

This bill allows residual or excess funds to be transferred to the Wisconsin election campaign fund for deposit in the general account.

Enforcement

Enforcement and complaint procedure

Currently, any interested person may petition the elections board under the state administrative procedure act for a "declaratory ruling" concerning the applicability to any person, property, or facts of any election law or rule of the board. The board may issue the ruling and is thereafter bound by its decision if the facts are as stated in the petition. The declaratory ruling may be reviewed in court. In addition, currently, any elector of a jurisdiction may contest before the elections board the decision of any election official of that jurisdiction with respect to certain specified matters or the board may, on its own motion, investigate and determine whether an election official is acting in conformity with the law concerning one of those specified matters. The decision of the board may be reviewed in court. Also, the elections board currently may bring civil actions in circuit court to enforce the campaign finance law. In addition, district attorneys may bring civil actions to enforce that law.

This bill creates an additional procedure for enforcement of the election laws. Under the bill, any person may file a sworn complaint with the executive director of the board alleging a violation of the elections laws. The executive director must investigate the complaint unless the executive director finds the complaint to be without merit. The bill also permits the executive director to investigate any violation of the election laws on his or her own initiative or upon direction of the board. The executive director may order an election official or private person to act in conformity with the election laws or rules of the board. The decision of the executive director may be appealed to the board. In deciding the appeal, the board is not bound by any findings of fact or conclusions of law made by the executive director with respect to the matter. If the decision of the executive director is not appealed or if the board does not modify or reverse a decision of the executive director after hearing an appeal, the decision of the executive director becomes the decision of the board. Any decision of the board is subject to judicial review in circuit court. The procedure does not apply to any alleged violation of the election laws by the board or executive director, nor to any matter arising in connection with a recount. The bill also directs the elections board to periodically examine and review decisions issued under the procedure with a view to clarifying and improving the administration of the election laws.

Injunctive relief

Currently, the elections board or any elector may sue for injunctive relief (a court order) requiring compliance with the elections laws. Before bringing a suit concerning a state office or statewide referendum, an elector must file a sworn complaint with the board alleging such facts as are within his or her knowledge to show probable cause that a violation has occurred or is proposed to occur. If the board does not sue for injunctive relief within ten days after filing the complaint, the elector may then file suit. This bill requires, instead, that an elector who proposes to bring suit for injunctive relief with respect to an alleged violation concerning an election for state office or a statewide referendum first must file a sworn complaint with the executive director of the board (unless the alleged violation relates to the board or executive director). If the executive director does not order the relief sought by the elector within ten days after the complaint is filed and the elector does not appeal the matter to the board or the board, after hearing the elector's appeal, does not order the relief sought by the elector, the elector may then sue for injunctive relief.

Penalties for violations

Currently, any person who violates any provision of the campaign finance law, except a contribution prohibition, is subject to a forfeiture (civil penalty) of not more than $500 for each violation. This bill increases this amount to $1,500. In addition, currently, any person who is delinquent in filing a report is subject to a forfeiture of not more than $50 or 1% of the annual salary of the office for which a candidate is being supported or opposed, whichever is greater, for each day of delinquency. This bill increases these amounts to a maximum of $150 or 3% of the annual salary, whichever is greater.

Currently, whoever intentionally violates certain provisions of the campaign finance law, such as registration requirements, contribution limitations, the prohibition against making contributions in the name of another person, the prohibition against using contributions for most nonpolitical purposes, and the prohibition against filing false reports and statements may be fined not more than $1,000 or imprisoned for not more than six months, or both, if the violation does not exceed $100 in amount or value, and may be fined not more than $10,000 or imprisoned for not more than four years and six months, or both, if the violation exceeds $100 in amount or value. This bill increases these amounts to a maximum fine of $3,000 or imprisonment for not more than one year, or both, if the violation does not exceed $100 in amount or value, and a maximum fine of $30,000 or imprisonment for not more than nine years, or both, if the violation exceeds $100 in amount or value.

Public broadcasting television stations and public access channels

This bill requires free time on public broadcasting television stations and public access channels for candidates for state office. Under current law, the Federal Communications Commission grants licenses for the operation of public broadcasting television stations. Also under current law, a city, village, or town is authorized to grant a franchise to a person that allows that person to operate a cable television system in the city, village, or town. Under the franchise, the person may be required to provide cable television channels that the city, village, or town may use for public, educational, or governmental purposes. A channel that is used exclusively for public, rather than educational or governmental purposes, is commonly referred to as a public access channel. A city, village, or town may operate a public access channel, or a city, village, or town may allow another person to operate the channel.

This bill requires the elections board to promulgate rules that require licensees of public broadcasting stations and operators of public access channels to provide a minimum amount of free time to candidates for state office at general, spring, and special elections. The rules must require the same amount of time for each candidate for a particular state office, but may require different amounts of time for different offices.

Official action in return for providing or withholding things of value

Currently, no person may offer or give to a state public official, including a member of the legislature, directly or indirectly, and no state public official may solicit or accept from any person, directly or indirectly, anything of value if it could reasonably be expected to influence the state public official's vote, official actions, or judgment, or could reasonably be considered a reward for any official action or inaction on the part of the state public official.

This bill provides, in addition, that no state or local public official holding an elective office may, directly or by means of an agent, give, or offer or promise to give, or withhold, or offer or promise to withhold, his or her vote or influence, or promise to take or refrain from taking official action with respect to any proposed or pending matter in consideration of or upon condition that any other person make or refrain from making a political contribution, or provide or refrain from providing any service or other thing of value, to or for the benefit of a candidate, a political party, any other person who is subject to a registration requirement under the campaign finance law or any person who makes an expenditure independently of a candidate for the purpose of making certain communications containing a reference to a candidate for state or local public office.

Violators are subject to a forfeiture (civil penalty) of not more than $5,000 for each violation, and are also subject to a forfeiture in an amount equal to the amount or value of any political contribution, service, or other thing of value that was wrongfully obtained, or if no political contribution, service, or other thing of value was obtained, an amount equal to the maximum contribution that an individual is permitted to make a candidate for the office sought or held by the official, whichever amount is greater. Intentional violators are guilty of a misdemeanor and are subject to a fine of not less than $100 nor more than $5,000 or imprisonment in the county jail for not more than one year or both.

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: