The Center for Competitive Politics (CCP) submitted comments to the Wisconsin Government Accountability Board (GAB) concerning its continuing review of whether it can regulate more political speech.
The GAB will hold a hearing on March 30 concerning Rule 1.28, “Scope of regulated activity; election of candidates,” to determine whether to expand regulation of certain types of political communication.
The rule concerns whether citizen groups who engage in issue advocacy should face greater regulation when they engage in so-called electioneering communications. Electioneering communications broadly defined at the federal level are any “broadcast, cable or satellite communications” that occur within 30 days of a primary, convention, or caucus, or 60 days of a general election, and refer to a candidate for office.
CCP’s comments, also submitted in last August, urge the GAB to reaffirm the state’s current regulation so as to comply with recent United States Supreme Court rulings, thus ensuring proper constitutional protection for independent issue advocacy.
— The GAB lacks the authority to make sweeping changes to its regulations without legislative authority,
— Even if the GAB had legislative authority, it could not impose funding restrictions on organizations engaged in “electioneering communications.”
The Supreme Court in 2007 declared that “electioneering communications” cannot be subject to funding source prohibitions unless the advertisement contains “express advocacy” or “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”
Additionally, the GAB can not presume the electioneering nature of communications made in non-broadcast media without intensive study and review.
— The GAB cannot impose disclosure requirements on organizations engaged in issue advocacy.
The Supreme Court is currently considering the constitutionality of disclosure requirements for political speech that meets the definition of “electioneering communications” in the case Citizens United v. FEC. CCP has explained that the purpose of disclosure laws is to permit citizens to monitor their government, not to permit the government to monitor the independent free speech and association of its citizens. As a result, CCP has pointed out that there is no justification for mandatory disclosure in connection with issue advocacy.
The GAB began its review of the rule in Aug. 2008. Board members voted to move forward with revisions to the rule on Jan. 15, formally initiating the rulemaking process. After the March 30 hearing, the proposed rule then goes to the Wisconsin legislature after potential modifications by the GAB.