Things keep happening to the right to speak in Wisconsin. It is hard for anyone to keep up with what you can, or cannot, say in the Cheesehead state.*
First a quick recap. As we have discussed several times before at MakeNoLaw.org (here, here, and here), last summer the Wisconsin Governmental Accountability Board issued an outlandish rule that, among other things, requires anyone who spends more than $25 on criticizing or praising a candidate within 60 days of an election to report that spending to the government. So if you buy a $26 sweatshirt that says “I ♥ Mary Smith” and Mary Smith is running for office, and you don’t report that spending, you break the law.
Earlier this month the Wisconsin Supreme Court agreed to hear a legal challenge to the new rule. That challenge applies to the reporting requirement on criticism and praise of candidates, but also to other censorship provisions in the new rule, such as extending reporting requirements to money spent on emails.
Faced with the Wisconsin Supremes agreeing to hear the case—and the likelihood they will strike the rule down—the Governmental Accountability Board has now amended the rule to no longer apply to mere criticism or praise of candidates.
Of course, this obviously is an attempt to avoid the legal challenge. It is not even a real change as it is a temporary “emergency rule” and the old provision could be reinstated when the challenge is over.
More importantly, the change only happened because citizens fought back with the means to challenge the rule in court. Without these challenges the Board would have marched forward with its attempt to criminalize all manner of citizen speech.
This is important to remember when looking at campaign finance laws as a whole. If people do not challenge how the government regulates speech the government inexorably will censor it. There are thousands of campaign finance laws in every jurisdiction of the country, many of which are never challenged in court, and many of which nevertheless go on to intimidate citizens into silence. Thus the more challenges people bring, and the more light they shine on the censors’ practices, the less likely we will end up with rules like the one in Wisconsin.
*As a proud alumnus of the University of Wisconsin-Madison, I think I get to use this term.