November 7, 2013
Madison - In a letter to state Government Accountability Board director Kevin Kennedy, the Wisconsin Democracy Campaign urged the agency to enforce a three-year-old campaign finance disclosure rule in the case of campaign advertising being aired by a group fronting for the Wisconsin Realtors Association in a special election contest in a Milwaukee-area state Assembly district.
With the November 19 election less than two weeks away, a radio ad sponsored by the Wisconsin Homeowners Alliance extols the virtues of 21st Assembly District candidate Jessie Rodriguez.
“This is a classic phony issue ad. It is exactly the kind of advertising the GAB’s disclosure rule was supposed to apply to,” WDC director Mike McCabe said.
In March 2010, the GAB unanimously approved an amendment to the state’s disclosure rules closing a loophole that advocacy groups have exploited for years to keep their election spending a secret. The new rule took effect on August 1, 2010. Legal challenges to the rule were mounted and less than two weeks after its effective date the GAB entered into an agreement relating to its enforcement. The agency insisted that under the agreement it still would be able to "require disclosure of the identity of those sponsoring communications that are susceptible of no reasonable interpretation other than as an appeal to vote for or against a candidate. Such ads do not need to say ‘vote for’ or ‘support’ to be subject to regulation."
The GAB has not been acting on that ability and enforcing the rule.
“There’s no time like the present for the board to start defending the public’s right to know by enforcing this rule,” McCabe said.
If the GAB starts enforcing the disclosure rule, it may be sued again. The agency should not be bullied into submission, McCabe said.
Interest groups argue the rules are invalid because the board lacked the authority to make them. They claim only the Legislature can close the issue ad loophole. There are two problems with this argument. First, state law says interest groups that spend money for a “political purpose” are subject to registration and reporting requirements under the law and the Legislature’s own attorneys have said the GAB has the authority to define what “political purpose” means. Second, Wisconsin’s elections board has always defined what constitutes a political purpose and advocacy groups never challenged the board’s authority when past definitions were to their liking.
“It’s only when the GAB’s action threatened to cramp their style that they questioned the agency’s rulemaking authority,” McCabe said.
Moreover, the board is on solid ground legally and constitutionally. In FEC v. Wisconsin Right to Life, with Chief Justice John Roberts writing for the majority, the U.S. Supreme Court ruled that disclosure can be required if an ad is the “functional equivalent” of advocacy for or against a candidate. Roberts went on to explain what he meant by “functional equivalent,” namely advocacy that is “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” The GAB borrowed his definition for the 2010 amendment to Wisconsin’s disclosure rules. In Citizens United v. FEC, eight of the nine justices on the nation’s highest court again came down squarely in favor of disclosure and again upheld Roberts’ functional-equivalent test.