Costs for training Class C operators are not expected to be significant because all Class C training will be provided by, or authorized by, the Class B operator for the facility.
Small Business Impact
These rule changes may have an economic effect on any small business with at least one federally regulated underground storage tank containing a flammable, combustible or federally-regulated hazardous liquid. These economic effects are not expected to be significant, and are summarized above.
Any inquiries for the small business regulatory coordinator for the Department of Commerce can be directed to Sam Rockweiler, the agency contact person listed below.
Initial Regulatory Flexibility Analysis
Types of small businesses that will be affected by the rules.
Any small business with at least one federally regulated underground storage tank system containing a flammable, combustible or federally-regulated hazardous liquid.
Reporting, bookkeeping and other procedures required for compliance with the rules.
Each facility that has a tank system as described above must maintain documentation which (1) identifies the facility's Class A, Class B and Class C operators; (2) shows these operators have received the accreditation required by the rules; and (3) lists instructions the Class C operator is required to follow.
All Class A and Class B operators must be trained to understand the responsibilities prescribed in the rules, or pass a written examination demonstrating that understanding. All Class C operators must receive prescribed training that is provided by, or authorized by, an accredited Class A or Class B operator for the facility where the Class C operator is employed.
Types of professional skills necessary for compliance with the rules.
To receive the accreditation required in the rules, Class A, Class B and Class C operators must show they understand how to (1) safely operate and maintain underground storage tank systems and corresponding liquid fuel dispensing systems, including leak detection equipment; (2) appropriately respond to any spills, leaks or releases associated with these systems; and (3) appropriately maintain the records that chapter Comm 10 currently requires for these systems.
Rules have a significant economic impact on small businesses?
The Department has considered the environmental impact of the proposed rules. In accordance with chapter Comm 1, the proposed rules are a Type III action. A Type III action normally does not have the potential to cause significant environmental effects and normally does not involve unresolved conflicts in the use of available resources. The Department has reviewed these rules and finds no reason to believe that any unusual conditions exist. At this time, the Department has issued this notice to serve as a finding of no significant impact.
There are no requirements in this proposal that should significantly affect either state or local government costs or revenues.
The anticipated costs that may be incurred by the private sector in complying with new requirements in the proposed rules are adequately described in the rule summary which immediately precedes the proposed rules.
Agency Contact Information
Wisconsin Department of Commerce
Division of Environmental and Regulatory Services
P.O. Box 14427
Madison, WI 53708-0427
telephone (608) 266-0797
Notice of Hearing
Government Accountability Board
NOTICE IS HEREBY GIVEN that pursuant to ss. 5.05 (1) (f)
and 227.11 (2) (a)
, Stats., the Government Accountability Board will hold a public hearing to consider adoption of a rule to amend s. GAB 1.28
, Wis. Adm. Code, relating to the definition of the term “political purpose."
The public hearing will be held at the time and location shown below.
Date and Time Location
March 30, 2009 Government Accountability Board
at 9:30 a.m. Office
212 E. Washington Avenue
Madison, Wisconsin 53703
This public hearing site is accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact the agency contact person listed below.
Analysis Prepared by the Government Accountability Board
Explanation of agency authority
Under the existing statute, s. 11.01 (16)
, Stats., an act is for “political purposes" when by its nature, intent or manner it directly or indirectly influences or tends to influence voting at an election. Such an act includes support or opposition to a person's present or future candidacy. Further, s. 11.01 (16) (a) 1.
, Stats., provides that acts which are for “political purposes" include but are not limited to the making of a communication which expressly advocates the election, defeat, recall or retention of a clearly identified candidate. The existing rule, s. GAB 1.28 (2) (c)
, provides that the campaign finance regulations under ch. 11
of the Wisconsin Statutes apply to making a communication that contains one or more specific words “or their functional equivalents" with reference to a clearly identified candidate that expressly advocates the election or defeat of that candidate and that unambiguously relates to the campaign of that candidate.
Under the existing statute, s. 11.01 (16) (a) 1.
, Stats., and rule, s. GAB 1.28 (2) (c)
, individuals and organizations that do not spend money to expressly advocate the election or defeat of a clearly identified candidate, or to advocate a vote “Yes" or vote “No" at a referendum, are not subject to campaign finance regulation under ch.11
of the Wisconsin Statutes. The term “expressly advocate" initially was limited to so-called “magic words" or their verbal equivalents. The Wisconsin Supreme Court, in Wisconsin Manufacturers & Commerce (WMC) v. State Elections Board
, 227 Wis.2d 650
(1999), has opined that if the Government Accountability Board's predecessor, the Elections Board, wished to adopt a more inclusive interpretation of the term “express advocacy," it could do so by way of a rule. The Wisconsin Court of Appeals, in Wisconsin Coalition for Voter Participation, Inc. v. State Elections Board
, 231 Wis.2d 670
(Wis. Ct. App. 1999), further opined:
And while, as plaintiffs point out, “express advocacy" on behalf of a candidate is one part of the statutory definition of “political purpose," it is not the only part. Under s. 11.01 (16)
, Stats., for example, an act is also done for a political purpose if it is undertaken “for the purpose of influencing the election . . . of any individual.
Contrary to plaintiffs' assertions, then, the term “political purposes" is not restricted by the cases, the statutes or the code to acts of express advocacy. It encompasses many acts undertaken to influence a candidate's election—including making contributions to an election campaign.
The United States Supreme Court, in McConnell et al. v. Federal Election Commission (FEC) et al.
, 540 U.S. 93
(2003), in a December 10, 2003 opinion, has said that Congress and state legislatures may regulate political speech that is not limited to “express advocacy." Specifically, the McConnell
Court upheld, as facially constitutional, broader federal regulations of communications that (1) refer to a clearly identified candidate; (2) are made within 60 days before a general election or 30 days before a primary election; and (3) are targeted to the relevant electorate. The McConnell
Court further opined:
Nor are we persuaded, independent of our precedents, that the First Amendment erects a rigid barrier between express advocacy and so-called issue advocacy. That notion cannot be squared with our longstanding recognition that the presence or absence of magic words cannot meaningfully distinguish electioneering speech from a true issue ad . . . Indeed, the unmistakable lesson from the record in this litigation . . . is that Buckley's magic-words requirement is functionally meaningless . . . Not only can advertisers easily evade the line by eschewing the use of magic words, but they would seldom choose to use such words even if permitted. And although the resulting advertisements do not urge the viewer to vote for or against a candidate in so many words, they are no less clearly intended to influence the election.
In Federal Election Comm'n. v. Wisconsin Right To Life, Inc. (WRTL II), 550 U.S. (2007), a United States Supreme Court case, Chief Justice Roberts writing for the majority, opined that an ad is the functional equivalent of express advocacy, if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate, i.e. mentions an election, candidacy, political party, or challenger; takes a position on a candidate's character, qualifications, or fitness for office; condemns a candidate's record on a particular issue.
The revised rule will more clearly specify those communications that may not reach the level of “magic words" express advocacy, yet are subject to regulation because they are the functional equivalent to express advocacy, for “political purposes," and susceptible of no other reasonable interpretation other than as an appeal to vote for or against a specific candidate.
Related statutes or rules
Plain language analysis
The revised rule will subject to regulation communications that are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The revised rule will subject communications meeting this criteria to the applicable campaign finance regulations and requirements of ch. 11
Comparison with federal regulations
The United States Supreme Court upheld regulation of political communications called “electioneering communications" in its December 10, 2003 decision: McConnell et al. v. Federal Election Commission, et al. (No.02-1674) and pursuant to its June 25, 2007 decision of: Federal Election Commission (FEC) v. Wisconsin Right to Life, Inc. (WRTL II), (No.06-969and 970).
The McConnell decision is a review of relatively recent federal legislation – The Bipartisan Campaign Reform Act of 2002 (BCRA) – amending, principally, the Federal Election Campaign Act of 1971 (as amended). A substantial portion of the McConnell Court's decision upholds provisions of BCRA that establish a new form of regulated political communication – “electioneering communications" – and that subject that form of communication to disclosure requirements as well as to other limitations, such as the prohibition of corporate and labor disbursements for electioneering communications in BCRA ss. 201, 203. BCRA generally defines an “electioneering communication" as a broadcast, cable, or satellite advertisement that “refers" to a clearly identified federal candidate, is made within 60 days of a general election or 30 days of a primary and if for House or Senate elections, is targeted to the relevant electorate.
In addition, the Federal Election Commission (FEC) promulgated regulations further implementing BCRA (generally 11 CFR Parts 100
) and made revisions incorporating the WRTL II
decision by the United States Supreme Court (generally 11 CFR Parts 104
.) The FEC regulates “electioneering communications."
Comparison with rules in adjacent states
Illinois has a rule requiring a nonprofit organization to file financial reports with the State Board of Elections if it: 1) is not a labor union; 2) has not established a political committee; and 3) accepts or spends more than $5,000 in any 12-month period in the aggregate:
A) supporting or opposing candidates for public office or questions of public policy that are to appear on a ballot at an election; and/or
B) for electioneering communications.
In addition, the same rule mandates all the same election reports of contributions and expenditures in the same manner as political committees, and the nonprofit organizations are subject to the same civil penalties for failure to file or delinquent filing. (See Illinois Administrative Code, Title 26, Chapter 1
, Part 100, s. 100.130
Iowa prohibits direct or indirect corporate contributions to committees or to expressly advocate for a vote. (s. 68A.503(1), Iowa Stats.) Iowa does allow corporations to use their funds to encourage registration of voters and participation in the political process or to publicize public issues, but provided that no part of those contributions are used to expressly advocate the nomination, election, or defeat of any candidate for public office. (s. 68A.503(4), Iowa Stats.) Iowa does not have any additional rules further defining indirect corporate contributions or expressly advocating for a vote.
Michigan prohibits corporate and labor contributions for political purposes (s. 169.254
, Mich. Stats.) and requires registration and reporting for any independent expenditures of $100.01 or more (s. 169.251
, Mich. Stats.) Michigan does not have any additional rules defining political purposes.
Minnesota statutes prohibit direct and indirect corporate contributions and independent expenditures to promote or defeat the candidacy of an individual. (s. 211B.15(Subds. 2 and 3), Minn. Stats.) A violation of this statute could subject the corporation to a $40,000.00 penalty and forfeiture of the right to do business in Minnesota. A person violating this statute could receive a $20,000.00 penalty and up to 5 years in prison. Minnesota does not have any additional rules defining indirect influence on voting. (s. 211B15 (Subds. 6 and 7), Minn. Stats.)
Summary of factual data and analytical methodologies
Adoption of the rule was primarily predicated on federal and state statutes, regulations, and case law. Additional factual data was considered at several Government Accountability Board public meetings, specifically the expenditures on television advertisements, and the actual transcripts for the same, as aired during a recent Wisconsin Supreme Court race.
Small Business Impact
The rule will have no effect on small business, nor any economic impact.
The creation of this rule has no fiscal effect.
Agency Contact Person
Shane W. Falk, Staff Counsel
Government Accountability Board
212 E. Washington Avenue, 3rd Floor
P.O. Box 2973
Madison, Wisconsin 53701-2973
Submission of Written Comments
Comments should be submitted no later than March 30, 2009 to the following address:
Government Accountability Board
212 E. Washington Avenue, 3rd Floor
P.O. Box 2973