Memo to Government Accountability Board

Regulation of Phony “Issue Ads”

Presented: August 28, 2008
Posted: September 2, 2008

TO: Government Accountability Board
FROM: Mike McCabe, Executive Director Wisconsin Democracy Campaign
SUBJECT: August 28 meeting regarding regulation of political communications under GAB 1.28

The rule that is the subject of the upcoming meeting on August 28 is more than 30 years out of date and at least two Supreme Court rulings behind the times. It leaves Wisconsin trapped in 1976, in a Buckley v. Valeo world, ignoring modern political realities and ignoring the latest jurisprudence. It renders what once were some of the strongest campaign finance disclosure laws and contribution limits in the nation functionally meaningless. This is so because of the inaction and impotence of your predecessor, the State Elections Board.

We urge this board not to perpetuate the mistakes of the old Elections Board.

You have the legal authority to break free from the sorry precedent established by the discredited board the GAB was created to replace. And we strongly believe you have an obligation to break free. You owe it to the people of Wisconsin. You owe it to the democratic process.

We do not ask you to make new law here. You cannot and need not do that. We only ask you to interpret and enforce existing state law in a way that accounts for current political realities, acknowledges and respects the U.S. Supreme Court’s decisions in McConnell v. FEC and FEC v. Wisconsin Right to Life, Inc., and protects and promotes the public interest.

The Elections Board interpreted and enforced the law in a way that was contrary to its spirit and contrary to legislative intent. It interpreted and enforced the law in a way that invited wealthy interests to game the system to get around the law. It interpreted and enforced the law in a way that subverted it and rendered it totally ineffective. Surely that is not the proper role of a regulatory agency.

We ask you to break with that past.

Earlier this year, the GAB signaled its intention to revisit ElBd. 1.28. And the board invited New York University Law School’s Brennan Center for Justice to draft a proposed revision. That draft, which was forwarded to the GAB in April, does not propose defining issue advocacy or regulating issue advocacy. We share the Brennan Center’s view that you do not have the legal authority to do that. The Brennan Center draft simply redefines express advocacy in keeping with the latest Supreme Court ruling in the Right to Life case. You most certainly have the authority to do this. Indeed, it’s your responsibility as a regulatory body.

Failure to act will signal participants in state elections that they remain free to game the system and engage in practices that are fundamentally dishonest and corrupting. As previously mentioned, Wisconsin once had some of the strongest campaign finance disclosure laws and contribution limits in the nation. They now aren’t worth much more than the paper they’re written on because they are so easy to circumvent. You can sponsor unlimited amounts of political advertising. You can trumpet the virtues of one candidate or viciously disparage another with messages that are highly misleading, even downright untruthful. But all you have to do to skirt the longstanding laws that were intended to protect the interests of voters and safeguard the political process from corruption is avoid using the so-called magic words – words like “vote for,” “vote against,” “support,” “elect” or “defeat.”

Five special interest groups spent close to $8 million in the last two state Supreme Court races on what most of the groups insist on calling “issue advocacy.” To voters across the state, it meant truckloads of money were spent on loads of TV ads smearing the candidates. The Milwaukee Journal Sentinel called the campaigning “tawdry” and “despicable.” A State Bar Association judicial campaign integrity committee called the advertising “deliberately misleading.”

The ads were deceiving in two other very important ways. They focused almost exclusively on a single issue – crime and public safety. But fighting crime is not the Supreme Court’s job. That’s what the police and prosecutors and trial courts do. Voters were repeatedly told a good Supreme Court justice will lock ‘em up and throw away the key when, in truth, the Supreme Court doesn’t conduct criminal trials or sentence convicts.

Not only did virtually all the ads have very little to do with the actual work of the Supreme Court, but they also had next to nothing to do with the groups’ own policy agendas. This is why these ads are commonly called sham issue ads.

In a report we issued last week, “Justice for Just Us,” we compared the five groups’ lobbying reports, legislative agendas, public statements and activities on the issues they are working on to the agendas of eight groups representing police, sheriffs, state troopers and criminal prosecutors. We found 77 legislative proposals relating to crime fighting or public safety the eight law enforcement groups were working on. And we found that the five groups that spent millions preaching about crime in the 2007 and 2008 Supreme Court races had virtually no interest in any of the 77 bills.

Three of the electioneering groups – the liberal Greater Wisconsin Committee and the conservative Club for Growth Wisconsin and Coalition for America’s Families – did not weigh in on any of the crime-related proposals. They did not even bother to register as lobbying groups which would have allowed them to actively work to persuade lawmakers to take action. The Club for Growth and the Coalition for America’s Families also did not use their web sites or any other public means to identify or take credit for work on any crime or safety issues. Greater Wisconsin Committee does not even have a web site to determine what – if any – issues it is interested in other than electing Democratic candidates.

The other two groups – Wisconsin Manufacturers and Commerce and the Wisconsin Education Association Council – lobbied on more than 240 business, union, tax and education measures in the 2007-2008 legislative session but took positions on only three proposals that could be remotely considered related to crime and public safety. And WMC opposed a measure to protect the jobs of first responders.

Simply put, WMC and WEAC didn’t put their lobbying muscle where their TV ads were. And it’s obvious that phony front groups like the Greater Wisconsin Committee, Club for Growth and Coalition for America’s Families exist for the sole purpose of doing election advertising. They don’t work on issues at all. They just exploit them for electoral gain.

You can put an end to this scam. The draft submitted by the Brennan Center distinguishes between authentic and phony issue advocacy by carving out an exception for legitimate grassroots lobbying and clearly defining the overt but secret electioneering that is so prevalent in Wisconsin campaigns as express advocacy subject to disclosure and contribution limits. That’s as it should be. We urge you to adopt such a rule.