11.38(8)(a)(a) A corporation or association organized under
ch. 185 or
193 which accepts contributions or makes disbursements for the purpose of influencing the outcome of a referendum is a political group and shall comply with
s. 11.23 and other applicable provisions of this chapter.
11.38(8)(b)
(b) Except as authorized in
s. 11.05 (12) (b) and
(13), prior to making any disbursement exceeding the amount specified under
s. 11.23 (1) on behalf of a political group which is promoting or opposing a particular vote at a referendum and prior to accepting any contribution or making any disbursement exceeding that amount to promote or oppose a particular vote at a referendum, a corporation or association organized under
ch. 185 or
193 that becomes subject to a registration requirement under
s. 11.23 (1) shall register with the appropriate filing officer specified in
s. 11.02 and appoint a treasurer. The registration form of the corporation or association under
s. 11.05 shall designate an account separate from all other corporation or association accounts as a campaign depository account, through which all moneys received or expended for the adoption or rejection of the referendum shall pass. The corporation or association shall file periodic reports under
s. 11.20 providing the information required under
s. 11.06 (1).
11.38(8)(c)
(c) Expenditures by a corporation or association to establish and administer a campaign depository account of a political group need not be made through the depository account and need not be reported.
11.38 Cross-reference
Cross-reference: See also s.
GAB 6.04, Wis. adm. code.
11.38 Annotation
An individual illegally furnishing funds from a corporate account may be convicted under s. 11.24 (1). State v. Dreske,
88 Wis. 2d 60,
276 N.W.2d 324 (Ct. App. 1979).
11.38 Annotation
This section's prohibition against corporate political contributions and disbursements is broad and probably would bar, in most cases, purchases of advertising by a corporation in a political party publication. 65 Atty. Gen. 10.
11.38 Annotation
The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether. Federal law prohibiting corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an "electioneering communication" or for speech expressly advocating the election or defeat of a candidate is unconstitutional. Citizens United v. Federal Election Commission,
558 U.S. 310,
130 S. Ct. 876,
175 L. Ed. 2d 753 (2010).
11.38 Annotation
The reasoning and conclusion of
Citizens United are clearly applicable to sub. (1) (a) 1. and any ban on corporate independent expenditures under Wisconsin law violates the guarantees of freedom of speech and association under the 1st amendment, as made applicable to the states by the 14th amendment.
Citizens United, however, does not appear to have any direct and immediate impact on the validity of those portions of s. 11.38 that do not involve corporate independent expenditures.
OAG 5-10 11.40
11.40
Special privileges from public utilities. 11.40(1)(a)
(a) "Public utility" means any corporation, company, individual or association which furnishes products or services to the public, and which is regulated under
ch. 195 or
196, including but not limited to, railroads, telecommunications or telegraph companies and any company furnishing or producing heat, light, power or water.
11.40(1)(b)
(b) "Special privilege" or "privilege" means anything of value not available to the general public. The term does not include compensation or fringe benefits provided as a result of employment by a public utility to regular employees or pensioners who are not compensated specifically for services performed for a political purpose, and not in excess of that provided to other regular employees or pensioners of like status.
11.40(2)
(2) No public utility or anyone connected therewith may offer or give any special privilege to any candidate for public office or any committee or its members or employees, or any individual under
s. 11.06 (7), or to any 3rd party at the request of or for the advantage of any of them.
11.40(3)
(3) No candidate for public office or any committee or member or employee thereof or any individual under
s. 11.06 (7) may ask for or accept any special privilege from any public utility.
11.40(4)
(4) This section does not apply to notaries public or to regular public utility employees or pensioners who are candidates for or hold public offices for which the annual compensation is not more than $300 so long as the privilege does not exceed those extended to other regular employees or pensioners of the utility.
11.60
11.60
Civil penalties. 11.60(1)(1) Any person, including any committee or group, who violates this chapter may be required to forfeit not more than $500 for each violation.
11.60(2)
(2) In addition to the penalty under
sub. (1), any person, including any committee or group, who is delinquent in filing a report required by this chapter may be required to forfeit not more than $50 or one percent of the annual salary of the office for which the candidate is being supported or opposed, whichever is greater, for each day of delinquency.
11.60(3)
(3) Notwithstanding
sub. (1), any person, including any committee or group, who makes any contribution in violation of this chapter may be required to forfeit treble the amount of the contribution or portion thereof which is illegally contributed.
11.60(3g)
(3g) Notwithstanding
sub. (1), any person, including any committee or group, who violates
s. 11.21 (5) or
11.22 (8) shall forfeit $10 for each person who is solicited, but not more than $1,000 for each report from which persons are solicited, in violation of
s. 11.21 (5) or
11.22 (8).
11.60(3m)
(3m) Notwithstanding
sub. (1), any person, including any committee, group or corporation, who is subject to a requirement to pay a filing fee under
s. 11.055 and who fails to pay that fee within the time prescribed in that section shall forfeit $500 plus treble the amount of the fee payable by that person.
11.60(4)
(4) Except as otherwise provided in
ss. 5.05 (2m) (c) 15. and
16. and
(h),
5.08, and
5.081, actions under this section may be brought by the board or by the district attorney for the county where the defendant resides or, if the defendant is a nonresident, by the district attorney for the county where the violation is alleged to have occurred. For purposes of this subsection, a person other than a natural person resides within a county if the person's principal place of operation is located within that county.
11.60(5)
(5) Any elector may file a verified petition with the board or the appropriate district attorney or with more than one of them where their authority is concurrent under
sub. (4), requesting that civil action under this chapter be brought against any person, committee or group. The petition shall allege such facts as are within the knowledge of the petitioner to show probable cause that a violation of this chapter has occurred.
11.60 Cross-reference
Cross-reference: See also ch.
GAB 7, Wis. adm. code.
11.60 Annotation
This is a civil penalty section even though some violations of it involve intent. State v. Dreske,
88 Wis. 2d 60,
276 N.W.2d 324 (Ct. App. 1979).
11.60 Annotation
In a forfeiture action against a committee, assets of the committee, but not of its members, are reachable. Elections Board v. Ward,
105 Wis. 2d 543,
314 N.W.2d 120 (1982).
11.61
11.61
Criminal penalties; prosecution. 11.61(1)(b)
(b) Whoever intentionally violates
s. 11.25,
11.26,
11.27 (1),
11.30 (1) or
11.38 is guilty of a Class I felony if the intentional violation does not involve a specific figure or if the intentional violation concerns a figure which exceeds $100 in amount or value.
11.61(1)(c)
(c) Whoever intentionally violates any provision of this chapter other than those provided in
par. (a) and whoever intentionally violates any provision under
par. (b) where the intentional violation concerns a specific figure which does not exceed $100 in amount or value may be fined not more than $1,000 or imprisoned not more than 6 months or both.
11.61(2)
(2) Except as otherwise provided in
ss. 5.05 (2m) (c) 15. and
16. and
(i),
5.08, and
5.081, all prosecutions under this section shall be conducted by the district attorney for the county where the defendant resides or, if the defendant is a nonresident, by the district attorney for the county where the violation is alleged to have occurred. For purposes of this subsection, a person other than a natural person resides within a county if the person's principal place of operation is located within that county.
11.61(3)(a)(a) If a successful candidate for public office, other than a candidate for the legislature, is adjudged guilty in a criminal action of any violation of this chapter under
sub. (1) (a) or
(b), or of any violation of
ch. 12 under
s. 12.60 (1) (a) committed during his or her candidacy, the court shall after entering judgment enter a supplemental judgment declaring a forfeiture of the candidate's right to office. The supplemental judgment shall be transmitted to the officer or agency authorized to issue the certificate of nomination or election to the office for which the person convicted is a candidate. If the candidate's term has not yet begun, the candidate shall not thereafter succeed to office. If the candidate's term has begun, the office shall become vacant. The office shall then be filled in the manner provided by law.
11.61(3)(b)
(b) If a successful candidate for the legislature is adjudged guilty in a criminal action of any violation of this chapter under
sub. (1) (a) or
(b), or of any violation of
ch. 12 under
s. 12.60 (1) (a) committed during his or her candidacy, the court shall after entering judgment certify its findings to the presiding officer of the house of the legislature to which the candidate was elected.
11.61 Annotation
Sub. (1) (a) does not require the state to prove that the defendant had actual knowledge of the violated statute. State v. Dreske,
88 Wis. 2d 60,
276 N.W.2d 324 (Ct. App. 1979).
11.64
11.64
Defense fund authorized. 11.64(1)
(1) Any candidate or public official who is being investigated for, charged with or convicted of a criminal violation of this chapter or
ch. 12, or whose agent is so investigated, charged or convicted, may establish a defense fund for expenditures supporting or defending the candidate or agent, or any dependent of the candidate or agent, while that person is being investigated for, or while the person is charged with or convicted of a criminal violation of this chapter or
ch. 12.
11.64(2)
(2) No person may utilize a contribution received from a contributor to a campaign fund for a purpose for which a defense fund is authorized under
sub. (1) unless the authorization of the contributor is obtained. Notwithstanding
s. 11.25 (2) (a), any contributor may authorize the transfer of all or part of a contribution from a campaign fund to a defense fund.
11.65
11.65
Donations to charitable organizations or school fund. Any registrant may make a donation to a charitable organization or the common school fund from the registrant's campaign treasury. No later than 5 days after a registrant makes a donation to a charitable organization or the common school fund from a campaign treasury, the registrant shall notify the registrant's filing officer in writing of the name of the donee and the date of the donation, and shall provide an explanation for not retaining the amount donated in the registrant's campaign treasury.
11.65 History
History: 2005 a. 451.
11.66
11.66
Elector may compel compliance. Any elector may sue for injunctive relief to compel compliance with this chapter. Before commencing any action concerning a state office or statewide referendum, an elector shall file a verified complaint with the board alleging such facts as are within his or her knowledge to show probable cause to believe that a violation has occurred or is proposed to occur. If the board fails to commence an action within 10 days of the filing of the complaint, the elector may commence an action. Separate from any other bond which may be required by the court, the elector may be required to post a surety bond in an amount determined by the court sufficient to cover the actual costs, including reasonable attorney fees, of both parties. If the elector's action is not successful, he or she shall pay the costs of the action.
11.66 Cross-reference
Cross-reference: See also ss.
GAB 6.04 and
20.04, Wis. adm. code.
