WILL Report: Wisconsin campaign finance laws are unconstitutional

 In Case Updates, CRG Network v. GAB, McCutcheon v. FEC, Press Releases, Reports, WILL News, Young v. GAB

Last year, Judge Sykes, on behalf of the United States Court of Appeals for the Seventh Circuit, authored a decision stating that Wisconsin’s campaign finance laws violate “the constitutional limits on the government’s power to regulate independent political speech.”  According to the Court, “the problem is that the state’s basic campaign-finance law — Chapter 11 of the Wisconsin Statutes — has not been updated to keep pace with the evolution in Supreme Court doctrine marking the boundaries on the government’s authority to regulate election-related speech.”  This most recent decision is a logical follow-up on a series of decisions from the U.S. Supreme Court that have substantially changed the constitutional limitations applicable to campaign finance laws.

A new report by the Wisconsin Institute for Law & Liberty applies these recent court decisions to Wisconsin’s campaign finance laws to conclude that large portions of the laws are blatantly unconstitutional and very outdated.  The existing laws were created in the mid nineteen-seventies which, in the world of campaign finance law, is antiquity since it predates all of the relevant Supreme Court authority on the point.

WILL’s report, “Constitutional Requirements for Wisconsin’s Campaign Finance Laws,” details the infirmities in the existing system and discusses the requirements and concerns that need to be addressed in creating a new system.  We explain the issues and rules involving issue advocacy versus express advocacy, independent expenditures versus contributions, so-called “coordination (the central issue in the highly controversial John Doe investigation), disclosure requirements, and contribution limits.  Some of the report’s conclusions include:

  1. The only government interest that justifies limits on contributions is combating actual or apparent quid pro quo corruption.  “Leveling the playing field” and “keeping money out of politics” are not constitutional bases for regulating campaign contributions.
  2. Many of the existing state law limits on campaign contributions are unconstitutional and all of them should be changed.
  3. So-called “coordination” is not illegal in Wisconsin and making “coordination” illegal as it relates to issue advocacy is a constitutional violation.
  4. Wisconsin must stop trying to regulate issue advocacy.  The Seventh Circuit has chastised the GAB because in the words of the Court the GAB has “embarked on a project aimed at bringing a wide swath of issue advocacy within the regulatory scheme.”
  5. Money is speech, or more accurately, speech requires money.  When the state restricts the ability of people to spend money on speech it is restricting expression in the same way as a government restriction on what a person could spend on legal fees would restrict her right to counsel, or a limitation on how much money could be given to a church would impair the free exercise of religion.

The U.S. Supreme Court has issued game-changing judicial decisions in the area of campaign finance.  The WILL Report explains how those decisions impact existing Wisconsin law and what they require going forward.

The full report can be found by clicking here and is available upon request.

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