Memo to State Elections Board

WDC calls for new rule on issue ads Memo to State Elections Board

WDC calls for new rule on issue ads

December 16, 2003

TO: State Elections Board members

FROM: Mike McCabe, Executive Director
Wisconsin Democracy Campaign

Now that the U.S. Supreme Court has upheld all of the major provisions of the Bipartisan Campaign Reform Act of 2001 (commonly known as the McCain-Feingold campaign finance reform law) - including regulation of so-called "issue ads" - the Elections Board should act promptly to adopt rules relating to issue advocacy that are consistent with the high court’s decision in McConnell v. FEC.

Notably, the Court threw out the "magic words" test allowing issue ad sponsors to skirt campaign finance disclosure laws and campaign contribution restrictions by avoiding the use of words like "vote for" or "vote against" in their communications. The Court ruled that this test, which has its origins in a footnote in the U.S. Supreme Court’s 1976 decision in Buckley v. Valeo, is "functionally meaningless." Since current Elections Board rules relating to issue advocacy are based on the now-discredited magic words test, these rules now are functionally meaningless as well.

The Court upheld the McCain-Feingold law’s definition of "electioneering communication" as a broadcast advertisement mentioning a federal candidate, targeted at their electorate, and aired within 30 days of a primary or 60 days of a general election. State rules mirroring the federal law should be put in place at once so all participants in the fast-approaching 2004 elections are given clear direction well in advance on how upcoming state-level campaigns must be conducted.

The Elections Board clearly has the authority to act. In its 1999 ruling in Elections Board v. WMC, the Wisconsin Supreme Court ruled in favor of Wisconsin Manufacturers and Commerce on the narrow question of whether the Elections Board had regulations in place at the time requiring disclosure of issue ad activity. But while the state Supreme Court said the board could not regulate WMC’s activity without rules in place, the court clearly said the state could regulate issue ads and invited either the Legislature or the Elections Board to craft such regulations. Neither the Legislature nor the Elections Board did so, presumably for fear of acting without clear direction on the question from the U.S. Supreme Court. Instead, the Elections Board adopted rules that enshrined the magic words test.

The legal clarity that was missing then was provided earlier this month by the nation’s highest court, so the Elections Board now has a green light to immediately replace its current rules with new rules based on the court-approved language in McCain-Feingold. We urge you to do so immediately.