Section
GAB 1.28, as promulgated on August 1, 2010, made a number of changes to the Board's interpretation and implementation of the statutory definition of an act “for political purposes" under s.
11.01 (16), Stats. Those changes were fully analyzed and explained in the July 13, 2010, Order of the Government Accountability Board,
CR 09-013.
The present amendment involves only the repeal of the second sentence of s.
GAB 1.28 (3) (b). All other portions of GAB 1.28, including the first sentence of s.
GAB 1.28 (3) (b), are unchanged. Moreover, all of the revisions to GAB 1.28 that were effected on August 1, 2010, remain temporarily enjoined pending further order of the Wisconsin Supreme Court. The present amendment has no effect on the continued effectiveness of that injunction.
The first sentence of s.
GAB 1.28 (3) (b), provides that any communication that “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate" is a communication “for political purposes" within the meaning of s.
11.01 (16), Stats., and hence is subject to all of the campaign finance regulations under ch.
11 of the Wisconsin Statutes that apply to communications for a political purpose — subject, of course, to any additional requirements or limitations contained in particular statutes.
The second sentence of s.
GAB 1.28 (3) (b) additionally identifies communications which are susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. That is, any communications that possess the characteristics enumerated in the second sentence of s.
GAB 1.28 (3) (b) would automatically be deemed communications for a political purpose and, as a result, would automatically be subject to the applicable campaign finance regulations under ch.
11 of the Wisconsin Statutes.
As a result of litigation challenging the validity of the August 1, 2010, amendments to s.
GAB 1.28, the Board has entered into a stipulation to refrain from enforcing the second sentence of s.
GAB 1.28 (3) (b). The Board, through its litigation counsel, has also represented that it does not intend to defend the validity of that sentence and has sought judicial orders permanently enjoining its application or enforcement. This sentence is removed by this emergency rule.
This amendment does not affect the first sentence of s.
GAB 1.28 (3) (b), under which individuals and organizations that raise or spend money to make communications that are susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate, are subject to campaign finance regulation under ch.
11 of the Wisconsin Statutes. As previously noted however, all of the August 1, 2010, amendments to s.
GAB 1.28 — including the first sentence of s.
GAB 1.28 (3) (b) — are currently subject to the August 13, 2010, temporary injunction by the Wisconsin Supreme Court.
Related statute(s) or rule(s)
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 criterion to the applicable campaign finance regulations and requirements of ch.
11, Stats. The scope of regulation will be subject to the United States Supreme Court Decision,
Citizens United vs. FEC (No. 08-205), permitting the use of corporate and union general treasury funds for independent expenditures.
Summary of, and comparison with, existing or proposed 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), its June 25, 2007 decision of: Federal Election Commission (FEC) v. Wisconsin Right to Life, Inc. (WRTL II), (No.06-969and 970), and pursuant to its January 21, 2010 decision of: Citizens United vs. FEC (No. 08-205).
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 contributions 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:
Pursuant to Public Act 96-0832, Illinois revised its “electioneering communication" statute in 2009, effective July 1, 2010, to include the “no reasonable interpretation other than an appeal to vote for or against" test, among other revisions. Subject to some delineated exemptions found in 10 ILCS 5/9-1.14, the statute now defines an “electioneering communication" as any broadcast, cable or satellite communication, including radio, television, or internet communication, that:
1) refers to a clearly identified candidate or candidates who will appear on the ballot, a clearly identified political party, or a clearly identified question of public policy that will appear on the ballot,
2) is made within 60 days before a general election or 30 days before a primary election,
3) is targeted to the relevant electorate, and
4) is susceptible to no reasonable interpretation other than an appeal to vote for or against a clearly identified candidate, a political party, or a question of public policy.
As a result of the adoption of Public Act 96-0832, Illinois is undergoing a substantial revision of its administrative code with respect to campaign finance and disclosure rules. (See proposed Illinois Administrative Code, Title 26, Chapter
1, Part 100, Campaign Financing, JCAR260100-101389r01). In the context of excluding “independent expenditures" from the term “contribution," Section
100.10(b)(3)G., of the proposed rules include both electioneering and express advocacy communications as forms of independent expenditures.
Iowa:
Iowa's Administrative Code defines “express advocacy" as including a communication that uses any word, term, phrase, or symbol that exhorts an individual to vote for or against a clearly identified candidate or the passage or defeat of a clearly identified ballot issue. (Chapter
351—4.53(1), Iowa Administrative Code.)
Michigan:
Michigan statutes define a “contribution" as anything of monetary value made for the purpose of influencing the nomination or election of a candidate or the qualification, passage or defeat of a ballot question. (s.
169.204(1), Mich. Stats.) “Expenditure" is defined as a payment of anything of monetary value in assistance of or opposition to the nomination or election of a candidate or the qualification, passage or defeat of a ballot question. (s.
169.206(1), Mich. Stats.) Michigan does not have any additional rules defining political purposes.
Minnesota:
Minnesota statutes define a “campaign expenditure" or “expenditure" as the purchase or payment of money or anything of value, or an advance of credit, made or incurred for the purpose of influencing the nomination or election of a candidate or for the purpose of promoting or defeating a ballot question. (s. 10A.01, Subd. 9, Minn. Stats.) “Independent expenditure" is defined as an expenditure expressly advocating the election or defeat of a clearly identified candidate, if the expenditure is not coordinated with any candidate or any candidate's principal campaign committee or agent. (s. 10A.01, Subd. 18, Minn. Stats.) Minnesota does not have any additional rules defining political purposes.
Summary of factual data and analytical methodologies
The factual data and analytical methodologies underlying the adoption of the August 1, 2010 amendments to s.
GAB 1.28 have been described in the July 13, 2010, Order of the Government Accountability Board,
CR 09-013. The adoption of the present amendment to s.
GAB 1.28 (3) (b) is predicated on the same data and methodologies and also on developments related to several court cases challenging the validity of the August 1, 2010 amendments to s.
GAB 1.28. These developments were discussed by the Board in a closed session meeting with its litigation counsel on December 14, 2010. These developments are also being discussed in an open session, public meeting of the Board on December 22, 2010.
Analysis and supporting documentation used to determine effect on small businesses
The rule will have no effect on small business, nor any economic impact.
Effect on Small Business
The creation of this rule does not affect business.
Fiscal Estimate
The creation of this rule has minimal fiscal effect. There may be additional registrants filing reports with the Board and potentially additional enforcement actions that may require staff action. The extent of this potential fiscal impact is undetermined.
Text of Proposed Rule
Pursuant to the authority vested in the State of Wisconsin Government Accountability Board by ss.
5.05 (1) (f),
227.11 (2) (a) and
227.24, Stats., the Government Accountability Board hereby adopts an emergency rule amending GAB 1.28, Wis. Adm. Code, interpreting ch.
11, Stats., as follows:
SECTION 1. GAB 1.28 (3) (b) is amended to read:
(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.
Agency Contact Person
Shane W. Falk, Staff Counsel
Government Accountability Board
212 E. Washington Avenue, 3rd Floor
P.O. Box 7984, Madison, WI 53707-7984
Phone : (608) 266-2094
Notice of Hearing
Regulation and Licensing
NOTICE IS HEREBY GIVEN that pursuant to authority vested in the Department of Regulation and Licensing in sections
15.08 (5) (b),
51.30,
146.82,
227.11 (2) and
440.04, Stats., and interpreting section
440.03, Stats., the Department of Regulation and Licensing will hold a public hearing at the time and place indicated below to consider an order to revise Chapters
RL 80 to
86, relating to licensure and certification requirements if licensed in another state or territory, approved instructors for educational programs and continuing education, examination requirements, rules of professional conduct, and “FIRREA" and AQB criteria.
Hearing Information
The public hearing will be held as follows:
Date and Time:
|
Location:
|
February 23, 2011
9:30 a.m.
|
1400 East Washington Avenue
Room 121A
Madison, WI
|
Appearances at the Hearing and Submittal of Written Comments
Interested persons are invited to present information at the hearing. Persons appearing may make an oral presentation but are urged to submit facts, opinions and argument in writing as well. Facts, opinions and argument may also be submitted in writing without a personal appearance by mail addressed to the Department of Regulation and Licensing, Division of Board Services, P.O. Box 8935, Madison, WI 53708 or by email to
Kristine1.Anderson@wisconsin.gov. Written comments must be received by
February 18, 2011, to be included in the record of rule-making proceedings.
Copies of Proposed Rule
Copies of this proposed rule are available upon request to Kris Anderson, Paralegal, Department of Regulation and Licensing, Division of Board Services, 1400 East Washington Avenue, P.O. Box 8935, Madison, Wisconsin 53708, or by email at
Kristine1.Anderson@wisconsin.gov.
Analysis Prepared by the Department of Regulation and Licensing
Statutes interpreted
Statutory authority
Explanation of agency authority
The Department of Regulation and Licensing is granted rule-making authority pursuant to s.
227.11, Stats., and is specifically granted rule-making authority pursuant to ss.
458.03,
458.06,
458.08,
458.085,
458.13 and
458.24, Stats.
Related statute or rule
There are no other statutes and rules other than those listed.
Plain language analysis
Changes are being made as delineated to be consistent with “FIRREA" and AQB Criteria, to clarify department references, to clarify certification scopes, to simplify the process for applying for licensure and certification in Wisconsin if licensed in another state or territory, to expand the approved instructors for educational programs and continuing education courses, to clarify credit for such courses, and to expand the rules of professional conduct.
SECTION 1 amends the rule to clarify the meaning of “mass appraisal."
SECTIONS 2, 3, 4, 10, 12 and 16 amend the Notes relating to where applications and information is available.
SECTION 5 creates a rule to simplify the process for applying for licensure or certification in Wisconsin if the applicant is already licensed in another state or territory.
SECTION 6 amends rules to clarify the scope of practice of certified general appraisers and certified residential appraisers.
SECTION 7 amends rules to clarify the requirements for examination.
SECTION 8 amends rules to change the experience requirements.
SECTION 9 creates rules to clarify what standards experience must comply with.
SECTION 11 creates rules to simplify the licensing and certification process for applicants who are licensed or certified in other states or territories.
SECTION 13 creates rules to expand available educational instructors and educational courses and to clarify the granting of credit for such courses.
SECTION 14 repeals and recreates rules to clarify the educational course requirements to become a licensed appraiser, a certified residential appraiser, and a certified general appraiser.
SECTION 15 adds a comma in the first sentence.
SECTION 17 creates rules to expand who is qualified to teach continuing education courses and approval for courses already approved by another state or territory, and clarifies credit for courses that qualify for both continuing education and certification.
SECTION 18 amends the rules of professional conduct to shorten the time to respond to investigation requests and to clarify a reference to state.
SECTION 19 creates rules of professional conduct adding three new circumstances which may be considered unprofessional conduct.
Summary of, and comparison with, existing or proposed federal regulation
Federal Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA")
The Federal Institutions Reform, Recovery, and Enforcement Act (“FIRREA"),
12 U.S.C. 3331 et seq., (Title XI) was enacted in 1989. Under FIRREA, insured financial institutions and insured credit unions are required to obtain the services of a State certified or licensed appraiser for appraisals conducted in connection with “federally related transactions."
Under FIRREA, the Appraisal Subcommittee of the Federal Financial Institutions Examination Council is required to monitor state appraiser certifying and licensing agencies for the purpose of determining whether a state agency's policies, practices, and procedures are consistent with the federal law. The Appraisal Subcommittee may not recognize appraiser certifications and licenses from states whose appraisal policies, practices and procedures are found to be inconsistent with FIRREA. Before refusing to recognize a state's appraiser certifications or licenses, the Appraisal Subcommittee must provide that state's certifying and licensing agency with a written notice of its intention not to recognize the state's certified or licensed appraisers and ample opportunity to provide rebuttal information or to correct the conditions causing the refusal. A decision of the Subcommittee to refuse to recognize a state's appraiser certifications or licenses is subject to judicial review.
12 U.S.C. 3331 et seq.
