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."
Hearing Information
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
3rd Floor
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
Statute interpreted
Statutory authority
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, Stats.
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-
114) and made revisions incorporating the
WRTL II decision by the United States Supreme Court (generally
11 CFR Parts 104,
114.) The FEC regulates “electioneering communications."
Comparison with rules in adjacent states
Illinois:
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:
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:
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:
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.
Fiscal Estimate
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
Phone 266-2094
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
Madison, Wisconsin 53701-2973
Text of Proposed Rule
SECTION 1. GAB 1.28 is amended to read:
GAB 1.28 Scope of regulated activity; election of candidates. (1) Definitions. As used in this rule:
(a) “Political committee" means every committee which is formed primarily to influence elections or which is under the control of a candidate.
(b) “Communication" means any printed advertisement, billboard, handbill, sample ballot, television or radio advertisement, telephone call, e-mail, internet posting, and any other form of communication that may be utilized for a political purpose.
(c) “Contributions for political purposes" means contributions made to 1) a candidate, or 2) a political committee or 3) an individual who makes contributions to a candidate or political committee or incurs obligations or makes disbursements for the purpose of expressly advocating the election or defeat of an identified candidate political purposes.
(2) Individuals other than candidates and
committees persons other than political committees are subject to the applicable
disclosure-related and recordkeeping-related requirements of ch.
11, Stats.,
only when they:
(a) Make contributions or disbursements for political purposes, or
(b) Make contributions to any person at the request or with the authorization of a candidate or political committee, or
(c) Make a communication containing for a political purpose.
(3) A communication is for a “political purpose" if either of the following applies:
(a) The communication contains terms such as the following 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:
1. “
Vote for;"
2. “Elect;"
3. “Support;"
4. “Cast your ballot for;"
5. “Smith for Assembly;"
6. “Vote against;"
7. “Defeat;" or
8. “Reject."
(b) The communication is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. A communication is susceptible of no other reasonable interpretation if it is made during the period beginning on the 60th day preceding a general, special, or spring election and ending on the date of that election or during the period beginning on the 30th day preceding a primary election and ending on the date of that election and that includes a reference to or depiction of a clearly identified candidate and:
1. Refers to the personal qualities, character, or fitness of that candidate;
2. Supports or condemns that candidate's position or stance on issues; or
3. Supports or condemns that candidate's public record.
(3) (
4) Consistent with s.
11.05 (2), Stats., nothing in sub. (1)
or , (2)
, or (3) should be construed as requiring registration and reporting, under ss.
11.05 and
11.06, Stats., of an individual whose only activity is the making of contributions.
SECTION 2. EFFECTIVE DATE.
This rule shall take effect on the first day of the month following publication in the Wisconsin administrative register as provided in s.
227.22 (intro), Stats.
Notice of Hearing
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