AB386: Bill Text

LRB-2153/1

JTK:kmg:pg

2003 - 2004 LEGISLATURE

2003 Assembly BILL 386

June 5, 2003 - Introduced by Representatives Pope-Roberts, Pocan, Black, Travis, Cullen, Berceau, Taylor, Morris, Huber, Plouff, J. Lehman, Richards and Shilling, cosponsored by Senators Erpenbach, Hansen, Robson, Carpenter and M. Meyer. Referred to Committee on Campaigns and Elections.

AB386,1,5 An Act to repeal 11.30 (2); to renumber 11.01 (1); to amend 7.40, 8.30 (2), 11.05 (2g), 11.30 (3) (b), 11.61 (1) (c) and 13.62 (5g); to repeal and recreate 8.30 (2) and 19.42 (3m); to create 11.01 (1g), 11.01 (17), 11.30 (2m) and 11.59 of the statutes; and to affect 2001 Wisconsin Act 109, section 9115 (2y) (b); relating to: disclosures required in certain campaign advertisements.

Analysis by the Legislative Reference Bureau

Current law

Current law contains several disclosure requirements with regard to advertisements and similar communications relating to campaigns for state or local office. For example, with certain exceptions, current law requires every printed advertisement, billboard, handbill, sample ballot, television or radio advertisement, or other communication that is paid for through a campaign contribution, disbursement (expenditure), or obligation to make a campaign contribution or disbursement to include a statement disclosing the source of the communication. Generally, current law requires this statement to include the words "Paid for by," followed by the name of the committee, group, or individual who pays for or reimburses the cost of the communication. If the communication is by a personal campaign committee, this statement may identify that committee or any of its bona fide subcommittees. If the communication is a solicitation on behalf of more than one candidate for a lawful joint fund-raising effort, this statement may indicate that a joint fund-raising effort is being conducted on behalf of the named candidates rather than indicate the names of the candidates or personal campaign committees assuming responsibility for the communication. The statement need not be included at all if the communication is made by a person that is not primarily organized for political purposes, unless the communication constitutes an independent disbursement (generally, an expenditure made without cooperation or consultation with a candidate or candidate's personal campaign committee and made for the purpose of expressly advocating the election or defeat of a clearly identified candidate). If the communication is made by a person who has filed an oath indicating an intent to make independent disbursements, the communication must also include the words "Not authorized by any candidate or candidate's agent or committee."

Current law contains several exceptions to these disclosure requirements. The requirements do not apply to the preparation and transmittal of personal correspondence; the production, wearing, or display of a single personal item which is not reproduced or manufactured for distribution to more than one individual; or communications printed on small items on which the disclosure information cannot be conveniently printed. In addition, the requirements do not apply to certain election-related, nonadvertising material included in an organization's newsletter, if the newsletter is distributed only to members of the organization.

Current law also prohibits a person from publishing or disseminating a communication that does not comply with these disclosure requirements. However, this prohibition does not apply to a communications medium that relies in good faith on the reasonable representations of a person who places an advertisement with the medium as to the applicability of these requirements to the person.

Currently, a person who violates these disclosure requirements or the prohibition on publication or dissemination is subject to a forfeiture (civil penalty) of up to $500 per violation. In addition, depending upon the amount or value of the violation, if the violation is intentional, the person 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 three years and six months, or both, if the violation exceeds $100 in amount or value. Currently, a private person may, under certain conditions, obtain injunctive relief to restrain violations but there is no private right of action for damages against violators.

Changes to current law

Generally

This bill repeals these disclosure requirements and the prohibition on publication or dissemination and creates a new system of disclosure requirements applicable to elections for state or local office. The disclosure requirements under the bill apply to any person who purchases or incurs an obligation for an advertisement. Generally, an "advertisement" under this bill is a communication in a billboard, card, newspaper, newspaper insert, magazine, mailing of more than 500 pieces of substantially identical material, pamphlet, flier, or periodical or on television or radio, if the communication constitutes a campaign contribution or disbursement. However, the bill does not apply to certain communications that do not expressly advocate the election or defeat of a clearly identified candidate or the adoption or rejection of a question at a referendum (this includes what are commonly referred to as "issue ads"). The bill creates general disclosure requirements and additional disclosure requirements applicable to television or radio advertisements. In addition, the bill prohibits any person from misrepresenting in an advertisement the sponsorship or authorization of the advertisement.

The general disclosure requirements under the bill prohibit a person from purchasing or incurring an obligation for an advertisement unless: a) the advertisement includes the statement "Paid for by .... [name of each purchaser]"; b) if the advertisement supports or opposes the nomination or election of one or more clearly identified candidates, the person states in the advertisement the person's position for or against the candidate or candidates; c) if the advertisement supports or opposes a question at a referendum, the person states in the advertisement the person's position for or against the question; d) if the advertisement is in the print media and supports or opposes the nomination or election of one or more clearly identified candidates, the person states whether or not the advertisement is authorized by a candidate, except that this requirement does not apply if the person purchasing the advertisement is the candidate whom the advertisement supports or that candidate's personal campaign committee; and e) if the advertisement is in the print media and identifies a candidate whom the person is opposing, the person discloses in the advertisement the name of any candidate whom the advertisement is intended to benefit, except that this requirement applies only if the person coordinates or consults with regard to the advertisement, or with regard to the disbursement for the advertisement, with the candidate who is intended to benefit therefrom.

The bill establishes certain requirements with regard to the manner in which these general disclosure requirements may be satisfied. In a print media advertisement, the height of all of the disclosure statements must constitute at least 5% of the height of the printed space of the advertisement, except that the type may not be less than 12 points in size. If a single advertisement consists of multiple pages, folds, or faces, the disclosure statements apply only to one page, fold, or face of the advertisement. In a television advertisement, a written disclosure statement must be made with letters equal to or greater than 4% of the vertical picture height. In a radio advertisement, the disclosure statements must last at least a total of three seconds.

Additional disclosure requirements applicable to television and radio

The bill also requires a person who purchases or incurs an obligation for a television or radio advertisement that supports or opposes the nomination or election of one or more clearly identified candidates to make certain additional disclosures. If the advertisement is obtained by a candidate or a candidate's personal campaign committee and mentions the name of, shows the picture of, transmits the voice of, or otherwise refers to an opposing candidate, the advertisement must include a statement spoken by the candidate containing at least the following: "I am (or "This is") .... [name of candidate], candidate for .... [name of office], and I (or "my campaign committee") sponsored this advertisement." If the advertisement is obtained by a political party, the advertisement must include a statement spoken by the chairperson, executive director, or treasurer of the political party containing at least the following: "The .... [name of political party] sponsored this advertisement [opposing or supporting] .... [name of candidate] for .... [name of office]." If the advertisement is obtained by a committee other than a political party or legislative campaign committee, the advertisement must include a statement spoken by the chief executive officer or treasurer of the committee containing at least the following: "The .... [name of committee], a political action committee, sponsored this advertisement [opposing or supporting] .... [name of candidate] for .... [name of office]." If the advertisement is obtained by an individual, the advertisement must include a statement spoken by the individual containing at least the following: "I am .... [individual's name], and I sponsored this advertisement [opposing or supporting] .... [name of candidate] for .... [name of office]." If the advertisement is obtained by any other person, the advertisement must include a statement spoken by the chief executive or principal decision maker of the person containing at least the following: "....[Name of person] sponsored this advertisement .... [opposing or supporting] .... [name of candidate] for .... [name of office]." If an advertisement requiring one of these additional disclosures is obtained by a person other than a candidate or the candidate's personal campaign committee, the person must characterize the advertisement as either supporting or opposing the nomination or election of one or more clearly identified candidates.

The bill establishes certain requirements with regard to the manner in which the additional televised disclosure requirements may be satisfied. A full-screen picture containing the individual making the required statement must be featured throughout the duration of any statement of a candidate, personal campaign committee, political party, individual, or committee other than a political party or legislative campaign committee. The picture may not contain any printed material other than any visual disclosure statement required by law. In addition, the image of the individual must occupy at least 50% of the vertical picture height and nothing may block the view of the individual's face. If the advertisement is more than five minutes long, the statement must be made at the beginning and at the end of the advertisement.

Remedies and penalties

The bill provides a candidate, or his or her personal campaign committee, with a private right of action against any person who purchases or incurs an obligation for a television or radio advertisement that violates these disclosure requirements, if the advertisement relates to an election for the office that the candidate seeks. The bill establishes filing requirements that a candidate or personal campaign committee must follow in order to bring such an action and requires the action to be brought no later than the 90th day after the election. The bill permits a successful plaintiff to receive damages equal to the total dollar amount of the television and radio advertising time that was aired in violation of these disclosure requirements, except that the damages must be increased to three times that amount in certain circumstances. Under the bill, a candidate and his or her personal campaign committee are jointly and individually liable for the payment of damages and any attorney fees awarded in such an action. However, if a candidate is held personally liable for the payment of damages or attorney fees or both, the candidate may not use or be reimbursed with funds from his or her personal campaign committee in paying the damages or attorney fees.

This bill also applies the civil and criminal penalties that apply to violations of the current disclosure requirements to violations of the disclosure requirements established under the bill, except that under the bill the criminal penalties do not apply to violations of the additional disclosure requirements for television and radio advertisements.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

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

AB386, s. 1 Section 1. 7.40 of the statutes is amended to read:

AB386,5,5 7.40 Sample ballots. Any individual, committee or candidate, at their own expense, subject to limitations upon contributions and disbursements under ch. 11, may print a supply of sample ballots, provided they bear on their face the information required by s. 11.30 (2) and they contain all of the names shown on the official ballot.

AB386, s. 2 Section 2. 8.30 (2) of the statutes is amended to read:

AB386,5,14 8.30 (2) If no registration statement has been filed by or on behalf of a candidate for state or local office in accordance with s. 11.05 (2g) or (2r) by the applicable deadline for filing nomination papers by such candidate, or the deadline for filing a declaration of candidacy for an office for which nomination papers are not filed, the name of the candidate may not appear on the ballot. This subsection may not be construed to exempt a candidate from applicable penalties if he or she files a registration statement later than the time prescribed in ss. 11.01 (1) (1r) and 11.05 (2g).

AB386, s. 3 Section 3. 8.30 (2) of the statutes, as affected by 2001 Wisconsin Act 109, is repealed and recreated to read:

AB386,6,9 8.30 (2) If no registration statement has been filed by or on behalf of a candidate for state or local office in accordance with s. 11.05 (2g) by the applicable deadline for filing nomination papers by the candidate, or the deadline for filing a declaration of candidacy for an office for which nomination papers are not filed, the name of the candidate may not appear on the ballot. This subsection may not be construed to exempt a candidate from applicable penalties if he or she files a registration statement later than the time prescribed in ss. 11.01 (1r) and 11.05 (2g).

AB386, s. 4 Section 4. 11.01 (1) of the statutes is renumbered 11.01 (1r).

AB386, s. 5 Section 5. 11.01 (1g) of the statutes is created to read:

AB386,6,13 11.01 (1g) "Advertisement" means a communication in the print media or on television or radio that constitutes a contribution or disbursement.

AB386, s. 6 Section 6. 11.01 (17) of the statutes is created to read:

AB386,6,17 11.01 (17) "Print media" means billboards, cards, newspapers, newspaper inserts, magazines, mailings of more than 500 pieces of substantially identical material, pamphlets, fliers, or periodicals.

AB386, s. 7 Section 7. 11.05 (2g) of the statutes is amended to read:

AB386,7,2 11.05 (2g) Candidates and personal campaign committees. Every candidate, as defined in s. 11.01 (1) (1r), shall file a registration statement with the appropriate filing officer giving the information required by sub. (3). If a candidate appoints another person as campaign treasurer the candidate's registration statement shall be cosigned by the candidate and the candidate's appointed treasurer. A candidate who receives no contributions and makes no disbursements shall file such statement as provided in s. 11.10 (1) but need not appoint a campaign treasurer or designate a campaign depository account until the first contribution is received or disbursement made.

AB386, s. 8 Section 8. 11.30 (2) of the statutes is repealed.

AB386, s. 9 Section 9. 11.30 (2m) of the statutes is created to read:

AB386,7,6 11.30 (2m) (a) Except as provided in par. (f), no person may purchase or incur an obligation for an advertisement unless all of the following conditions are satisfied:

AB386,7,8 1. The advertisement includes the statement "Paid for by .... [name of each purchaser, as indicated on the purchaser's registration statement under s. 11.05]."

AB386,7,11 2. If the advertisement supports or opposes the nomination or election of one or more clearly identified candidates, the person states in the advertisement the person's position for or against the candidate or candidates.

AB386,7,14 3. If the advertisement supports or opposes a question proposed at a referendum, the person states in the advertisement the person's position for or against the question.

AB386,7,22 4. If the advertisement is in the print media and supports or opposes the nomination or election of one or more clearly identified candidates, the person states whether or not the advertisement is authorized by a candidate. The statement in the advertisement shall include the words: "Authorized by .... [name of candidate], candidate for .... [name or office]" or "Not authorized by a candidate," as applicable. This subdivision does not apply if the person purchasing the advertisement is the candidate whom the advertisement supports or that candidate's personal campaign committee.

AB386,8,3 5. If the advertisement is in the print media and identifies a candidate whom the person is opposing, the person discloses in the advertisement the name of any candidate whom the advertisement is intended to benefit. This subdivision applies only if the person coordinates or consults with regard to the advertisement, or with regard to the disbursement for the advertisement, with the candidate who is intended to benefit therefrom.

AB386,8,9 (b) 1. In a print media advertisement, the height of all disclosure statements required under par. (a) shall constitute at least 5% of the height of the printed space of the advertisement, except that the type may not be less than 12 points in size. If a single advertisement consists of multiple pages, folds, or faces, the disclosure statements required under par. (a) apply only to one page, fold, or face of the advertisement.

AB386,8,12 2. In a television advertisement, a written disclosure statement used to comply with par. (a) shall be made with letters equal to or greater than 4% of the vertical picture height.

AB386,8,14 3. In a radio advertisement, all disclosure statements, combined, that are required under par. (a) shall last at least 3 seconds.