On Monday, a conservative and a liberal organization joined forces to file a lawsuit seeking to block a state administrative rule requiring such organizations to disclose the source of their funding if they engage in advocacy for or against a state candidate up for election - during the period immediately proceeding the election. The administrative rule, promulgated by the Wisconsin Government Accountability Board, went into effect Aug. 1 after no one in the Wisconsin Legislature sought to block it.
The lawsuit, brought by the conservative Wisconsin Club for Growth and the liberal One Wisconsin Now organizations, is not "frivolous and baseless" as some have characterized it. It is serious and should be addressed in a serious way.
Yes, the suit should be dismissed by the federal court because it is unconstitutional. But the Wisconsin Legislature should enact into law disclosure legislation to further solidify and safeguard electioneering disclosure from future legal assault by anti-reform guardians of the corrupt status quo.
Disclosure of donors that fund widely disseminated electioneering communications in the period immediately prior to an election is a reform measure Common Cause in Wisconsin first proposed in 1997 - the first reform organization to do so - and we have been fighting to enact it into law ever since.
Earlier this year, the United States Supreme Court reversed more than 100 years of precedent and settled law when it narrowly (5 to 4) ruled in Citizens United v. Federal Election Commission that corporations and unions can now use their general treasury funds to spend unlimited funds for independent expenditures to influence the outcome of a federal (and by extension state and/or local) election. But that same court, in that same decision, voted 8 to 1 to allow for even more robust disclosure of such expenditures. Only Justice Clarence Thomas opposed the enhanced disclosure that the other eight justices supported. The lawsuit against the Wisconsin GAB is essentially the Thomas argument against the enhanced disclosure that the GAB rule imposes, and it ought to be dismissed as unconstitutional.
The other basis for the Wisconsin Club for Growth/One Wisconsin Now lawsuit is that the GAB does not have the authority to impose such a rule and that only the Legislature can impose such sweeping disclosure requirements. That argument is also flawed. The Legislature, by not blocking or revising the administrative rule promulgated by the GAB, gave de facto approval to the rule. That is how the administrative process works.
But there is a simple and straightforward way to erase any doubt about whether or not the Wisconsin Legislature supports disclosure of the campaign communications masquerading as issue advocacy. Gov. Jim Doyle can and should call the Wisconsin Legislature into special session to pass a revised version of Senate Bill 43, bipartisan campaign finance reform legislation requiring disclosure of the donors and regulation of the money utilized by outside special interest groups and individuals that run widely disseminated campaign communications masquerading as issue advocacy 60 days or less prior to an election.
The state Senate overwhelmingly passed the original Senate Bill 43 on Jan. 19 by a bipartisan 26 to 7. The Assembly needed to modify the measure somewhat in the wake of the Jan. 21 U.S. Supreme Court decision in Citizens United v. Federal Election Commission. But it never got done. The votes were most certainly there to pass it in both the state Senate and the Assembly but it was never scheduled.
Doyle, who has been a consistent vocal supporter of requiring the disclosure of phony issue ads, should call the Legislature back into special session to pass a modified version of Senate Bill 43. Sen. Jon Erpenbach, D-Waunakee, has draft legislation ready to be considered. It could be accomplished by both legislative chambers in less than an hour.
Assembly Speaker Mike Sheridan, D-Janesville, and state Senate Majority Leader Russ Decker, D-Schofield, also have it within their power to call the Legislature into extraordinary session. Since it is unlikely they will call the Legislature back to pass a revised Senate Bill 43 as the campaign season begins to heat up, it is really up to Doyle, who is not running for re-election, to do this. He should do it immediately, and the Legislature should pass it by the end of August so it will be in place for the upcoming November elections.
The governor would not only be greatly improving his reform legacy as he leaves public office, but more importantly, he would ensure that Wisconsinites will know who is trying to influence their decisions in the upcoming critical elections. It is our constitutional right to know who is behind the money. That right certainly supersedes the secrecy that outside groups jealously, selfishly and wrongheadedly seek to preserve.
Jay Heck is executive director of Common Cause in Wisconsin.