Suit Against GAB Is Serious

In a heartwarming union of the lion and the lamb, the Club For Growth and One Wisconsin Now have come together to sue the Government Accountability Board over a new rule requiring organizations and individuals to register and disclose the source of their funds if they spend more than $ 25 on communications for "political purposes" during a certain period prior to an election.

Mike McCabe of the Wisconsin Democracy Campaign pronounces the suit to be "baseless and frivolous." He's wrong and here's why.

It is absolutely true that the United States Supreme Court upheld disclosure requirements with respect to "express advocacy," i.e., communications that expressly call for the election or defeat of a named candidate or that can reasonably be construed in no other way.

But there are at least three problems with the application of that holding to this rule.

First, the authority of the GAB is limited by statute. It may only regulate what the legislature has said it may regulate. In this case, the statute places restrictions on communications for a political purpose which include, but are not limited to "communication[s] which expressly advocates the election, defeat, recall or retention of a clearly identified candidate.” The question becomes what else might be included in the category of communication for a political purpose.

The GAB will undoubtedly point to statutory language that says that an act is done for political purposes when "done for the purpose of influencing the election or nomination for election of any individual to state or local office ...." The problem is that, in Wisconsin Right to Life v. FEC, the United States Supreme Court rejected the idea that the presence or absence of regulation might turn on an examination of the intent or the speaker or the effect upon the audience. The uncertainty of whether a form of speech is in or out might chill protected speech.

While the regulation at issue here involves disclosure and not a limitation on the source of the funds, a court might well say that the GAB is authorized to regulate only those communications that meet the meaning of express advocacy as clarified by the United States Supreme Court.

Perhaps recognizing that, the GAB tries to both adopt and expand the WRTL's definition of express advocacy. First, it says that a regulated communication is one that meets WRTL's definition. Then, perhaps in response to the concern that such a definition would cover almost no independent communications that are actually made in the real world, it says that a communication is within that definition if it references or depicts a candidate within the relevant period and"

1. Refers to the personal qualities, character, or fitness of that candidate;

2. Supports or condemns that candidate's position or stance on issues; or

3. Supports or condemns that candidate's public record.

That is arguably inconsistent with WRTL's definition of express advocacy. While it's true that the ad in WRTL did not restate and criticize a candidate's position, it seems inconsistent with the notion behind separating issue from express advocacy to say that the former may not call upon a candidate for public office to change his or her position.

Second, assuming that the GAB is within its statutory authority, the question turns to whether the disclosure requirements burden speech. Citizens United informs, but doesn't resolve the question, in that it dealt with WRTL express advocacy. The state's interest in identifying those who are expressly advocating the election or defeat of a candidate may not be as strong as the interest in identifying those engaging in issue advocacy. CU can be used to argue that it is, but it didn't resolve the question.

One might also argue that disclosure does not burden speech. That seems wrong. The law imposes administrative costs on the speaker and subjects donors to the risk of public ostracism. We know that this burden does not render disclosure requirements facially unconstitutional when we are dealing with express advocacy. But issue advocacy is another matter.

Third, the reach of the rule is extraordinary. It doesn't merely apply to persons or or organizations who buy airtime but to bloggers and writers and people who print up handbills.