Expert: It’s as if GAB decided ‘Citizens United didn’t exist’

Part 62 of 63 in the series Wisconsin’s Secret War

UPDATED: 2:20 p.m.

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — It would appear the state Legislature has a fair amount of cleanup work to do following this week’s ruling by the 7th Circuit U.S. Court of Appeals declaring unconstitutional portions of state campaign finance laws restricting issue advertising.

Just how lawmakers plan to complete said legislative spring cleaning remains to be ironed out.

COURT SCOLDING: The the 7th Circuit U.S. Court of Appeals’ ruling this week declaring portions of campaign finance law unconstitutional takes the state Legislature to task for not keeping up with Supreme Court rulings knocking out impediments to political speech.

Myranda Tanck, spokeswoman for Senate Majority Leader Scott Fitzgerald, R-Juneau, said legislative leaders still are reviewing the 88-page decision handed down late Wednesday.

The ruling sides with Wisconsin Right to Life Inc. and its state political action committee in their quest to block the enforcement of multiple state statutes and rules against groups that spend money for political speech independently of candidates and parties — so-called issue advocacy groups.

Fitzgerald “also expects to consult with the attorney general’s office sometime in the near future about what the practical impacts are of the ruling,” Tanck told Wisconsin Reporter.

A spokeswoman for Attorney General J.B. Van Hollen told Wisconsin Reporter that the state Department of Justice would “respond to requests from Legislators as they arise.” She did not answer when asked whether such requests have arisen. Reid Magney, spokesman for the Government Accountability Board, the state agency charged with overseeing campaign and election law, did not return a request for comment.

A campaign law expert says the 7th Circuit doesn’t mince word in its sharp criticism for Wisconsin’s Legislature and its failure to keep up with the U.S. Supreme Court’s landmark Citizens United vs. the Federal Elections Commission ruling, which lifts limits on campaign spending and denounces the kinds of vague and nebulous campaign finance law at issue in the Badger State.

“The Wisconsin Legislature did not act,” said Benjamin Barr, a Washington, D.C.-area election lawyer who has worked on a variety of election law cases, including defense work in the long legal battle of former House Majority Leader Tom DeLay, R-Texas.

“Instead, we had an unaccountable bureaucracy in the Government Accountability Board cobbling together a hodgepodge of regulations and interpretations about what kind of speech they were going to regulate and how broad those regulations were going to be,” Barr said.

Vague laws interpreted by bitter bureaucrats, perhaps the kind upset by Gov. Scott Walker’s reforms of public-sector collective bargaining, can lead to “predawn raids on people, allowing petty bureaucrats and bad government actors to decide who the enemies are,” Barr said.

Barr refers to Wisconsin’s politically charged John Doe investigation, launched nearly three years ago by Milwaukee County District Attorney John Chisholm, a Democrat. The secret probe, which sources have told Wisconsin Reporter featured “paramilitary-style” predawn raids at the homes of conservatives, has targeted dozens of conservative organizations — and only conservative organizations — on a theory that they illegally coordinated with Walker’s campaign during Wisconsin’s partisan recall campaigns of 2011-12.

Court filings indicate that the GAB was deeply involved in the investigation, assigning a shadowy contracted investigator to what turned into a five-county, court-administered dragnet.

Former Federal Election Commission member Hans von Spakovsky said the 7th Circuit’s ruling cuts the legs out from under the John Doe investigation.

U.S. District Court Judge Rudolph Randa last week issued a preliminary injunction, shutting down the probe. The judge sided with conservative activist Eric O’Keefe and his Wisconsin Club for Growth, targets of the John Doe who brought a civil rights lawsuit against Chisholm, two of his henchmen, John Doe special prosecutor Francis Schmitz, and Dean Nickel, the GAB’s investigator.

The prosecutors-turned-defendants have appealed Randa’s ruling to the 7th Circuit.

“It is very clear to me that the Wisconsin Legislature has a very big job ahead of it trying to clean up its entire system of campaign regulation,” said Von Spakovsky, senior legal fellow at the Washington, D.C.-based Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

The Appeals Court ruling, von Spakovsky said, shows how overly complex and Byzantine Wisconsin campaign finance law is. He noted the court’s description of Wisconsin’s “labyrinthian” system that is “difficult to decipher without a background in this area of the law.”

“That violates the most basic rules of the First Amendment,” von Spakovsky said. “We want to encourage ordinary citizens to run for office. When you have campaign rules so complex that only lawyers can understand them you are discouraging people from running for office. That’s the worst thing you can do.”

In an email to his colleagues, Assembly Speaker Robin Vos, R-Rochester, called the appeals court ruling “a broad victory for those who support protecting the First Amendment and eliminating government overreach.”

“I will be leading the Assembly efforts on this legislation and ask that any interested representatives contact my office. I intend to concentrate not only on the problems highlighted in the ruling, but also other First Amendment problems including issues related to speech coordination, arcane contribution limits, and other issues with contribution prohibitions,” Vos said in the email.

In short, the Appeals Court in a 3-0 decision found the state’s corporate-speech ban, the ban on political spending by corporations, unconstitutional under the U.S. Supreme Court’s 2010 Citizens United ruling that opened up previous restrictions on campaign finance. The Appeals Court remanded the case to the District Court to issue a permanent injunction consistent with the opinion.

The court also ruled:

  • The cap on the amount a corporation may spend on fundraising for an affiliated political committee, is unconstitutional.
  • The lengthy disclaimer requirement under state Government Accountability Board’s regulation is unconstitutional as applied to 30-second radio ads and ads of shorter duration.
  • The statutory definition of “political purposes,” section 11.01(16), and the regulatory definition of “political committee,” GAB § 1.28(1)(a), are unconstitutionally vague and overly broad in the sense meant by federal court precedent. As applied to political speakers other than candidates, their campaign committees and political parties, the definitions are limited to express advocacy.

Barr said the court’s ruling takes aim at the nonpartisan Government Accountability Board. He does, too.

“I think the GAB to blatantly ignore the pretty strong standards set out by Citizens United, it’s really unfathomable,” the campaign finance expert said. “It’s as if they decided Citizens United didn’t exist and they are making a mockery out of the rule of law and perverting the First Amendment. It’s hard to describe that as oversight on their part.”

In the wake of growing concerns about the legality of a secret John Doe probe into conservatives, Republican lawmakers are calling for a review of the Government Accountability Board — particularly examining the agency’s role in the politically charged investigation.

“After seeing these activities in conjunction with the John Doe, I think this government needs to review GAB, get some answers, and consider reforms, if necessary, in the next legislative session,” state Sen. Tom Tiffany, R- Hazelhurst, told Wisconsin Reporter last week.

Tiffany said it is too early to determine if reforms are needed at the GAB, but he said a closer look into the agency is warranted.

Barr said the Legislature has given the GAB too much power.

“The adage is never ask the barber if you need a haircut,” he said. “Campaign zealots … believe they’re doing the Lord’s work. That’s why you have to rein them in … You’ve got to shackle these people, otherwise the trend time and time again is that they will go after innocent citizens and damage the First Amendment.”

Von Spakovsky said the 7th Circuit’s ruling is a harbinger of things to come.

“Wisconsin has very restrictive campaign finance rules, but other states have similarly restrictive rules,” he said, adding that the complexities of Wisconsin’s campaign finance law are a real hindrance to the political process, unlike the state’s voter ID laws recently found unconstitutional by a federal judge.

“Voter ID simply requires folks to get an ID to vote, whereas this complex campaign finance law makes it extremely difficult for anyone to engage in political speech and political activity. That is a real restriction on citizen’s right to participate,” von Spakovsky said.

Contact M.D. Kittle at