The Center for Media and Democracy has filed a brief with the Wisconsin Supreme Court defending proposed disclosure rules passed in the wake of the U.S. Supreme Court’s Citizens United decision, rules that are being challenged by the Koch-funded group Americans for Prosperity. In the brief, CMD also questions whether rights granted by Wisconsin’s Constitution can be legitimately extended to corporations.
At issue are rules passed by Wisconsin’s election board last summer that would expand the scope of campaign ads requiring public disclosure of the ad’s funders. Under the old rules, ads that did not explicitly say “vote for X” or “vote against Y” were considered “issue ads” that could avoid disclosure laws, even if the ad was an obvious appeal to vote for or against a candidate.
As soon as the new rules were created, the Club for Growth filed suit in federal court in Madison, Wisconsin Right to Life filed suit in federal court in Milwaukee, and Americans for Prosperity and the MacIver Institute filed suit directly with the Wisconsin Supreme Court. Both federal courts stayed their decisions pending the outcome of the Wisconsin Supreme Court case.
In September, the Wisconsin Supreme Court enjoined enforcement of the rule and the 2010 elections took place without strong disclosure regulations. Secret spending increased dramatically in those elections, and citizens only knew the origins of about half of the dollars spent in 2010. Overall spending also increased with groups taking advantage of the Citizens United ruling, which allowed for-profit and not-for-profit groups to spend unlimited money influencing elections under the guise of free speech. The Wisconsin Supreme Court will now consider whether to lift the injunction and allow the rule to stand, or side with Americans for Prosperity and deem it unconstitutional.
“We believe that knowing the financial interests behind political messages designed to influence elections is essential for citizens to make informed voting decisions,” says Lisa Graves, CMD’s executive director. “While we believe that the U.S. Supreme Court was wrong in overturning McCain-Feingold’s restrictions on corporate political spending in the 5-4 Citizens United decision, we do agree with the court’s strong expression of support for disclosure. In our brief, we cite that opinion’s disclosure language to defend Wisconsin’s new rules against attacks by Americans for Prosperity, who would preserve the veil of secrecy that has tainted recent elections.”
The U.S. Supreme Court has reasoned that political ads or expenditures by “independent” groups are of little value to candidates if they are not directly coordinated with the candidate. On that point, CMD discusses how new groups forming post-Citizens United are operating in a highly coordinated manner, and refers to Gov. Scott Walker’s request for independent expenditures in his February conversation with the phony “David Koch.”
“Political advertising by special-interest groups is more valuable than a direct campaign donation to a candidate because there are currently no limits on how many millions any CEO or corporation can give to such groups to spend influencing an election in favor of a candidate and such groups can run spend millions in attack ads undermining the candidate’s opponent,” says Graves. “So we are asking the Wisconsin Supreme Court to uphold this state’s long commitment to clean government and shine essential sunshine on special-interest groups like Americans for Prosperity and others that are spending big bucks to influence elections while keeping their major funders and amounts of donations from these big money interests secret from the voters.”
CMD argues that the Declaration of Rights in the Wisconsin Constitution may not extend to corporations. Section 1 in Wisconsin’s Declaration of Rights, Article I, states that “all people are born equally free and independent,” suggesting that all rights contained in the article, including free speech rights, are available only to those who are “born,” and not to artificial entities that come into existence through “incorporation.” The brief notes that “the corporation’s founders may open a bottle of champagne to toast the occasion, and perhaps even pass around cigars, but it seems unlikely that anyone would throw a baby shower.”
Brendan Fischer is a law fellow with the Madison-based Center for Media and Democracy. This column first appeared on CMD’s website.