JTK:kjf&wlj:rs
2009 - 2010 LEGISLATURE
February 17, 2010 - Introduced by Senators Wirch, Lassa, Coggs, Lehman and
Miller, cosponsored by Representatives
Black, Pope-Roberts, Turner,
Steinbrink, Kessler, Cullen and Berceau. Referred to Committee on Labor,
Elections and Urban Affairs.
SB540,1,4
1An Act to amend 11.06 (2), 11.38 (1) (a) 1. and 11.38 (1) (b); and
to create 11.01
2(16) (a) 3., 11.05 (3) (q), 11.05 (3) (s) and 11.38 (3e) of the statutes;
relating to:
3political disbursements by corporations and cooperative associations and the
4scope of regulated activity under the campaign finance law.
Analysis by the Legislative Reference Bureau
Under current law, corporations and cooperatives are prohibited from making
contributions or disbursements (expenditures) in campaigns for state or local office.
Violators are subject to a forfeiture (civil penalty) of not more than $500 for each
violation. Intentional violators are guilty of a Class I felony, which is punishable by
a fine of not more than $10,000 or imprisonment for three and one-half years, or
both, except that if a violation involves $100 or less, the violation is punishable as
a misdemeanor with a fine of not more than $1,000 or imprisonment for not more
than six months, or both. A recent decision of the U.S. Supreme Court has cast doubt
about whether this law is enforceable. See Citizens United v. F.E.C., Case No. 08-205
(2010).
This bill deletes the current prohibition on disbursements by corporations and
cooperatives. The bill provides, however, that before a corporation or cooperative
may make a disbursement or incur an obligation to make a disbursement for the
purpose of influencing an election for state or local office, the corporation or
cooperative must file with its registration statement and maintain on file with the
appropriate filing officer or agency: 1) a copy of a document that is satisfactory to the
Government Accountability Board, reflecting action taken not more than two years
previous to the time that any disbursement is made or any obligation to make a
disbursement is incurred, demonstrating that the corporation or cooperative has
received the approval of a majority of its voting shares or members who are entitled
to elect the board of directors for the corporation or cooperative to make
disbursements and incur obligations to make disbursements for the purpose of
influencing an election for state or local office; or 2) a statement that the corporation
or cooperative has no shareholders or members.
Currently, individuals who accept contributions, organizations that make or
accept contributions, and individuals who or organizations that incur obligations or
make disbursements for the purpose of influencing an election for state or local office
are generally required to register with the appropriate filing officer and to file
financial reports with that officer, regardless of whether they act in conjunction with
or independently of any candidate who is supported or opposed.
With certain exceptions, this bill imposes registration and reporting
requirements, in addition, upon any individual who and organization that, within
60 days of an election and by means of communications media, makes any
communication that includes a reference to a candidate at that election, an office to
be filled at that election, or a political party. The bill also requires an individual who
or organization that becomes subject to a registration requirement by making such
a communication to report, upon registration, the information that would have been
required to be reported if the individual or organization had been registered with
respect to any obligation incurred or disbursement made for the purpose of making
such a communication prior to registration. The bill, however, does not require
registration and reporting if the communication is made by a corporation,
cooperative, or nonpolitical voluntary association and is limited to the corporation's,
cooperative's, or association's members, shareholders, or subscribers.
The change in the scope of reportable activity under the bill also applies to
contribution and disbursement limitations and restrictions by causing reportable
"contributions," "obligations," and "disbursements" to include the cost of all
reportable communications.
Violators of registration and reporting requirements or the prohibition created
by the bill are subject to a forfeiture of not more than $500 for each violation. In
addition, any person who is delinquent in filing a report is subject to a forfeiture of
not more than $50 or 1 percent of the annual salary of the office for which a candidate
is being supported or opposed, whichever is greater, for each day of delinquency.
Intentional violators of the registration requirements or the prohibition created by
the bill are guilty of a Class I felony and may be fined not more than $10,000 or
imprisoned for not more than three years and six months, or both. Persons who
intentionally file false reports or statements are guilty of a Class I felony if the
violation exceeds $100 in amount or value and 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.
The bill also provides that no owner, officer, employee, or agent of a corporation
or cooperative may cause or authorize the corporation or cooperative to make a
disbursement or to incur an obligation that is prohibited under the bill. Under the
bill, if an owner, officer, employee, or agent causes or authorizes a violation, action
must be brought against the owner, officer, employee, or agent personally and the
corporation or cooperative is not financially liable for the violation. In addition, no
corporation or cooperative is permitted to reimburse an owner, officer, employee, or
agent for any financial liability incurred by the owner, officer, employee, or agent.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB540, s. 1
1Section
1. 11.01 (16) (a) 3. of the statutes is created to read:
SB540,3,82
11.01
(16) (a) 3. A communication that is made by means of one or more
3communications media, other than a communication that is exempt from reporting
4under s. 11.29, that is made during the period beginning on the 60th day preceding
5an election and ending on the date of that election, and that includes a reference to
6a candidate whose name is certified under s. 7.08 (2) (a) or 8.50 (1) (d) to appear on
7the ballot at that election, a reference to an office to be filled at that election, or a
8reference to a political party.
SB540, s. 2
9Section
2. 11.05 (3) (q) of the statutes is created to read:
SB540,3,1710
11.05
(3) (q) In the case of a corporation or cooperative association organized
11under ch. 185 or 193 that wishes to make disbursements or to incur obligations to
12make disbursements for the purpose of influencing an election for state or local office,
13a statement that the corporation has received the approval of a majority of those
14shareholders or members who are entitled to vote to elect the board of directors to
15make disbursements and to incur obligations to make disbursements, together with
16the attachment required under sub. (3e) or, if there are no shareholders or members,
17a statement to that effect.
SB540, s. 3
18Section
3. 11.05 (3) (s) of the statutes is created to read:
SB540,4,5
111.05
(3) (s) In the case of a registrant that has made a communication
2identified in s. 11.01 (16) (a) 3., a report containing the information specified in s.
311.06 (1) with respect to any obligation to make a disbursement incurred or any
4disbursement made for the purpose of making such a communication prior to
5registration.
SB540, s. 4
6Section
4. 11.06 (2) of the statutes is amended to read:
SB540,4,177
11.06
(2) Disclosure of certain indirect disbursements. Notwithstanding
8sub. (1), if a disbursement is made or obligation incurred by an individual other than
9a candidate or by a committee or group which is not primarily organized for political
10purposes,
and the disbursement does not constitute a contribution to any candidate
11or other individual, committee
, or group,
and the disbursement is not made or the
12obligation is not incurred for the purpose of making a communication specified in s.
1311.01 (16) (a) 3., the disbursement or obligation is required to be reported only if the
14purpose is to expressly advocate the election or defeat of a clearly identified
15candidate or the adoption or rejection of a referendum. The exemption provided by
16this subsection shall in no case be construed to apply to a political party, legislative
17campaign, personal campaign
, or support committee.
SB540, s. 5
18Section
5. 11.38 (1) (a) 1. of the statutes is amended to read:
SB540,4,2319
11.38
(1) (a) 1. No foreign or domestic corporation, or association organized
20under ch. 185 or 193, may make any contribution
or disbursement, directly or
21indirectly, either independently or through any political party, committee, group,
22candidate or individual for any purpose other than to promote or defeat a
23referendum.
SB540, s. 6
24Section
6. 11.38 (1) (b) of the statutes is amended to read:
SB540,5,3
111.38
(1) (b) No political party, committee, group, candidate or individual may
2accept any contribution
or disbursement made to or on behalf of such individual or
3entity which is prohibited by this section.
SB540, s. 7
4Section
7. 11.38 (3e) of the statutes is created to read:
SB540,5,225
11.38
(3e) Corporations and cooperatives; evidence of authorization to make
6disbursements. (a) As a part of its registration, each corporation or cooperative
7association organized under ch. 185 or 193 that wishes to make disbursements or to
8incur obligations to make disbursements for the purpose of influencing an election
9for state or local office shall provide a copy of a document that is satisfactory to the
10board, reflecting action taken not more than 2 years previous to the time that any
11disbursement is made or any obligation to make a disbursement is incurred,
12demonstrating that the corporation or association has received the approval of a
13majority of the voting shares or members who are entitled to elect the board of
14directors for the corporation or association to make disbursements and incur
15obligations to make disbursements in elections for state or local office in this state
16or a statement that the corporation or association has no shareholders or members.
17No corporation or cooperative association organized under ch. 185 or 193 may make
18any disbursement or incur any obligation to make a disbursement, directly or
19indirectly, or through any political party, committee candidate, or individual for the
20purpose of influencing an election for state or local office unless the corporation or
21association has a current statement under this subsection on file with the
22appropriate filing officer and the statement is accurate.
SB540,6,623
(b) No owner, officer, employee, or agent of a corporation or cooperative
24association organized under ch. 185 or 193 may cause or authorize the corporation
25or association to make a disbursement or to incur an obligation in violation of this
1subsection. If such an owner, officer, employee or agent causes or authorizes a
2violation of this subsection, action for the violation shall be brought against the
3owner, officer, employee, or agent personally and the corporation or association is not
4financially liable for the violation. No such corporation or association may reimburse
5an owner, officer, employee, or agent for any financial liability incurred by the owner,
6officer, employee, or agent under this subsection.
SB540,6,108
(1) The treatment of section 11.01 (16) (a) 3. of the statutes first applies with
9respect to contributions received, disbursements made, and obligations incurred on
10or after the effective date of this subsection.