To: Mike McCabe, Wisconsin Democracy Campaign
From: J. J. Gass, Associate Counsel
Date: May 28, 2004
Re: Proposed "BCRA-type" Rule for Wisconsin

On February 2, 2004, we sent you a memorandum analyzing the constitutionality of regulating "electioneering communications," substantially as defined in the Bipartisan Campaign Reform Act ("BCRA"), in the same manner as Wisconsin law regulates other communications made for a "political purpose." We concluded that in light of McConnell v. FEC, 124 S. Ct. 619 (2003), there was no federal constitutional impediment to such regulation.

You have now asked us to review the memorandum dated May 19, 2004 to Elections Board members from George Dunst, Legal Counsel to the Elections Board (the "Dunst Memo"). The Dunst Memo raises a constitutional objection not considered in our February 2 memorandum. In analyzing this new objection, we have reviewed not only the Dunst Memo, but also, among other materials: (1) Mr. Dunst's memorandum to Elections Board members dated May 12, 2004; (2) the memorandum from Kevin J. Kennedy, Executive Director, to Elections Board members dated May 19, 2004; and (3) the letter from Kira A. Loehr to Shane Falk of the Elections Board dated May 19, 2004 (the "Loehr letter").

We conclude that the constitutional concerns raised in the Dunst Memo are insubstantial.

As we understand the Dunst Memo's argument, it is this: the statute and proposed rule, acting in tandem, would regulate electioneering communications; the substance of such regulation would be constitutional; considering the statutory text, the proposed rule would be a proper exercise of the Elections Board's authority to adopt rules construing the term "political purpose"; but the proposed rule is unconstitutional because federal courts, construing federal statutes, adopted a limiting construction that differs from the otherwise completely constitutional construction of Wisconsin statutes adopted by the proposed rule.

We know of no authority for the last contention, and, despite its length, the Dunst Memo cites none.

As the Loehr Letter explains, the construction of Wisconsin's statutes and regulations is a matter of state law and is not governed by federal precedents. Confronted with a federal statute that might be unconstitutionally vague, the United States Supreme Court adopted a limiting construction, commonly known as the "express advocacy" test. See Buckley v. Valeo, 434 U.S. 1, 43-44 (1976) (per curiam); McConnell, 124 S. Ct. at 688-89 (discussing Buckley). But the fact that "express advocacy" is one permissibly specific definition of regulated conduct does not mean it is the only one. And since the construction of a Wisconsin statute is a matter of state law, Buckley's adoption of the "express advocacy" definition cannot prohibit the state-including the Elections Board-from including other regulatory categories in the "political purpose" definition, so long as those categories are themselves constitutionally permissible.

After McConnell, it is indisputable that the "express advocacy" test was necessary only because the 1976 federal statutory text standing alone was too vague. Judicial construction is one way to save an otherwise vague statute. Administrative agency action, including rulemaking, is another. See Ward v. Rock Against Racism, 491 U.S. 781, 795-96 (1989); S. Car. Medical Ass'n v. Thompson, 327 F.3d 346, 355 (4th Cir. 2003); Gun Owners' Action League v. Swift, 284 F.3d 198, 208-09 (1st Cir. 2002); Dial Info. Servs. Corp. of N.Y. v. Thornburgh, 938 F.2d 1535, 1540-41 (2d Cir. 1991) ("[T]he FCC was . . . defining a term contained in a statute it was required by Congress to administer. . . . Accordingly, the term 'indecent' as used in the Helms Amendment is sufficiently defined to provide guidance to 'the person of ordinary intelligence' in the conduct of his affairs."); Dirks v. SEC, 802 F.2d 1468, 1471 (D.C. Cir. 1986) ("Under settled law, a broadly worded statute can be sufficiently clarified by a narrowing, authoritative [agency] interpretation to fend off a vagueness challenge.").

Thus, if regulation of "electioneering communications" is permissible (as the Dunst Memo agrees it is), and if the Elections Board has the authority under Wisconsin law to adopt such regulations (as the Dunst Memo agrees it does), there is no constitutional doctrine that would preclude the Elections Board from adopting the proposed rule. The statutory term "political purpose" would not be unconstitutionally vague, because it would be given content that the Supreme Court has approved for specificity. Neither the statute nor the proposed rule would unconstitutionally burden First Amendment rights, because their coverage-"express advocacy" and "electioneering communication"-would be exactly the same combination the Court approved in McConnell.

The notion that Wisconsin is somehow required to use precisely the same process as the federal government in adopting substantively constitutional regulations is unsupported by any precedent. The state is free to determine for itself which issues to tackle legislatively and which to leave to administrative rulemaking. States do not even have to have separate legislative and executive branches, let alone apportion responsibility between them in a particular way. See Sweezy v. New Hampshire, 354 U.S. 234, 255 (1957); Dreyer v. Illinois, 187 U.S. 71, 84 (1902) ("Whether the legislative, executive, and judicial powers of a state shall be kept altogether distinct and separate, or whether persons or collections of persons belonging to one department may, in respect to some matters, exert powers which, strictly speaking, pertain to another department of government, is for the determination of the state."). It is scarcely conceivable that a federal court would strike down the proposed rule because it was adopted by the Elections Board rather than by the legislature.