Wisconsin Supreme Court Reaffirms Right to Free Speech

John Doe ruling illustrates why GAB reform is necessary, campaign finance laws need update

Milwaukee, WI – July 16, 2015 – Today, the Wisconsin Supreme Court ended the nearly five year long investigation into Governor Scott Walker and conservative organizations for alleged campaign finance violations. It was an extraordinarily broad investigation employing a highly questionable legal theory and executed in an astonishingly aggressive manner. Whether intended to or not, an investigation like this – aimed at only one side of the political spectrum – threatened constitutionally protected speech and association. The Supreme Court did the right thing.

One result of today’s decision is that issue advocacy is completely unregulated in Wisconsin.  That may be just as well. Issue advocacy is a critical “safety valve” that permits an outlet for speech when contributions to candidates are limited.  Yet, to the extent this is seen as a problem, the blame lies not with the Court, but with a poorly drafted and outdated statute and regulatory overreach. The Wisconsin Government Accountability Board can’t change the law. But it might have acted by rule and policy to adequately limit its enforcement activities.

Instead, the GAB has engaged in an “on again, off again” program to administer the law in ways that violate the First Amendment.  The GAB has, according to the Seventh Circuit Court of Appeals, “embarked on a project aimed at bringing a wide swath of issue advocacy within the regulatory scheme [of Chapter 11].”  Last year, in Wisconsin Right to Life v. Barland, the Seventh Circuit Court of Appeals informed the GAB  that the definition of “political purpose” in Wisconsin law was unconstitutionally vague and overbroad – something that the GAB has sometimes (but not always) acknowledged in the past. This flawed definition was central to the investigation that led to today’s decision. The Barland decision was the second time in three years that the Seventh Circuit had invalidated or limited portions of Wisconsin’s campaign finance laws due to their constitutional overbreadth.  It was followed – just last year – by two more decisions from the federal district court concluding that other portions of Chapter 11 were unconstitutional.

Faced with a constitutionally problematic statutory framework, the GAB would do better to adopt a modest, rather than aggressive, regulatory program. It should do so now and lend its expertise to reform the law in a way that comports with the First Amendment rather seeking to limit expressive and associational conduct in ways that the Constitution simply does not allow.  That this has not happened before – that one of the worst assaults on free speech in our state’s history – was aided and abetted by the agency in charge of policing elections is truly unfortunate.



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