Strange Bedfellows File Anti-Disclosure Lawsuit

by Mike McCabe, Executive Director

August 6, 2010

Two groups on opposite ends of the political spectrum agree on one thing: Disclosure of election spending is something to be avoided at all costs.

The liberal group One Wisconsin Now and the conservative Club for Growth have sued in federal court in hopes of blocking new disclosure rules adopted by the state Government Accountability Board.

They say the rules would interfere with them exercising their free speech rights and violate the First Amendment. Never mind that the rules don’t prevent them from airing any ad or otherwise spreading any message. Groups are merely required to disclose how much they are spending on electioneering and who’s paying for it.

They say the GAB lacks the authority to put such rules in place and that only the Legislature can do such a thing. Never mind that the Legislature had to review these new rules and could have vetoed them but didn’t. And never mind that the GAB’s predecessor, the state Elections Board, itself crafted rules defining what counts as electioneering and neither OWN nor CFG – nor any of the groups they are carrying water for – ever objected or sued on the grounds that the Elections Board lacked authority. Of course, the Elections Board’s definition of electioneering enshrined the “magic words” loophole; that is, if a message does not contain words like “vote for” or “vote against” it has no political purpose. Interest groups loved that rule because it enabled them to easily skirt disclosure requirements and contribution limits.

They say the GAB rules are impermissibly overbroad because they could apply to campaign messages delivered via e-mail. This is a red e-herring. Wisconsin has decades-old lobbying laws that say if groups communicate with a state official or legislative employee on five or more days, they must register and report their activity. All of those communications could be e-mails to individual state officials. Groups ranging from the Bowling Centers Association of Wisconsin to the Wisconsin Bowhunters Association that do next to no lobbying are nevertheless required to file disclosure reports every six months just like the teachers union and big trade associations and multinational corporations. But groups like the bowlers and the bowhunters aren’t out there complaining that this is unduly burdensome and they aren’t suing the state to block lobbying disclosure. These laws have been on the books for ages, and the threshold for triggering disclosure of lobbying activity is far lower than the threshold the GAB has established for electioneering groups.

Groups interested in steering voters toward certain candidates and away from others aren’t being asked to disclose after sending an e-mail to a single individual on five days like lobbying groups are. They are doing blast e-mails to larger audiences. E-mail marketing is ubiquitous in our society now. It isn’t nearly as expensive as TV air time or old-fashioned direct mail or even robocalls, but it ain’t exactly cheap. In any case, the GAB’s rules wouldn’t stop groups from e-blasting away, they only serve to make the public aware of how much is being spent on this kind of campaigning and who’s funding it.

A divided U.S. Supreme Court ruled in January that corporations and unions can spend whatever they want on elections, but a supermajority of justices also ruled they can’t do it secretly. They have a right to spend, but also a responsibility to disclose. Fee speech advocates love the new right but not the accompanying responsibility, and are showing they’ll go to any lengths to keep the public in the dark about who is buying elections and what the purchase price is.

WDC Executive Director Mike McCabe
Mike McCabe
WDC Executive Director
2000-2014

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