Wis. SC dismisses case over new political ad rule

Jessica M. Karmasek Mar. 20, 2012, 11:12am


MADISON, Wis. (Legal Newsline) - The Wisconsin Supreme Court has dismissed a lawsuit challenging new state campaign advertisement rules.

On Monday, the Court filed its per curiam opinion in a case against the Wisconsin Government Accountability Board's new administrative rule, known as GAB 1.28.

According to the board -- which is charged with oversight of the state's campaign finance, elections, ethics and lobbying laws -- the rule uses a "common-sense test" to determine whether an ad has a political purpose and is subject to statutory disclosure and disclaimer requirements.

Under GAB 1.28, an ad will be considered to have a political purpose if it is "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

Previously, a campaign ad had to "expressly advocate" the election, defeat, recall or retention of a clearly identified candidate. Express advocacy was defined by the use of certain "magic words" or their functional equivalents for it to be subject to campaign finance laws requiring disclosure of who paid for the ad.

The board said those rules led to numerous campaign ads by independent groups that skirted regulation by avoiding the use of certain words, such as "vote for" and "vote against."

"This rule means that if people or groups run independent ads, which for all intents and purposes are political ads for or against a candidate, they will be required to disclose what they're doing and where the money is coming from," Kevin J. Kennedy, director and general counsel of the GAB, said in a statement at the time.

"It will improve transparency in campaign finance and elections, and help voters make informed decisions at the ballot box."

GAB 1.28 was approved by the board in March 2010 and submitted to the Legislature, which has the power to block the rule within a certain period of time.

In July of that year, the Senate Committee on Labor, Elections and Urban Affairs and the Assembly Committee on Elections and Campaign Reform both reported taking no action on the proposed rule.

The rule was then published in the Administrative Register, becoming effective Aug. 1, 2010.

Days later, on Aug. 9, a petition was filed by Wisconsin Prosperity Network Inc., The MacIver Institute for Public Policy Inc., Americans for Prosperity, the Rev. David King, Concerned Citizens of Iowa County Inc., Daniel O. Curran, Oriannah Paul, The Sheboygan Liberty Coalition, Kimberly J. Simac and Northwoods Patriot Group Inc.

A response was then filed by board members and employees Gordon Myse, Thomas Barland, Michael Brennan, Thomas Cane, Gerald C. Nichol, David Deininger and Kennedy.

On Aug. 13, 2010, the state Supreme Court enjoined the board from enforcing the amendments to GAB 1.28, pending further order of the Court.

On Nov. 30, 2010, after considering whether the petition warranted the exercise of its original jurisdiction, the Court granted leave to commence the original action and assumed jurisdiction over the case.

The same day, it granted a motion by Mary Bell and the Wisconsin Education Association Council to intervene.

Oral arguments were held in September 2011. After which, the six participating justices unanimously agreed that the Aug. 13, 2010 order enjoining the board from enforcing the amendments to GAB 1.28 should be vacated.

However, the Court was equally divided on the rationale.

Chief Justice Shirley S. Abrahamson and Justices Ann Walsh Bradley and N. Patrick Crooks concluded that the board had the authority to promulgate the July 31, 2010 amendments to GAB 1.28.

The amendments, they said, were not "facially invalid" under the First Amendment of the U.S. Constitution or under the state constitution.

Justices Patience Drake Roggensack, Annette Kingsland Ziegler and Michael J. Gableman said the action should be dismissed on the ground that an original action was "improvidently granted."

When the Court splits evenly, the state Court of Appeals' decision is affirmed if the case is before the high court on a petition for review, or the cause is remanded to the Court of Appeals for further proceedings if it is before the Court on a bypass or certification.

In this case, however, the action was not before the Court on a petition for review, bypass or certification but as an original action pursuant to a petition for leave to commence an original action seeking declaratory relief and a request for temporary injunctive relief enjoining the enforcement of the amendments to GAB 1.28.

"Accordingly, the original action pending before this court is dismissed and the Aug. 13, 2010 order enjoining the respondents from enforcing the July 31, 2010 amendments to Wis. Admin. Code § GAB 1.28 is vacated," the Court wrote in its three-page opinion.

Justice David Prosser withdrew from participating in the case last year.

According to the Milwaukee-Wisconsin Journal Sentinel, a lawyer representing the plaintiffs, Jim Troupis, led the recount for Prosser's campaign after he was barely re-elected to the Court.

Last May, Wisconsin Assistant Attorney General JoAnne Kloppenburg, Prosser's opponent, conceded defeat.

Kloppenburg decided not to take legal action after losing the recount by about 7,000 votes.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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