Faced with three separate lawsuits the State of Wisconsin has backed-down from enforcing an incredibly-broad new campaign finance regulation. If the regulation had been enforced, then conceivably millions of people across the Wisconsin would have had to register with the government for merely mentioning candidates for office.
No, this is not a conspiracy theory post. Let me repeat that: Millions of people may have had to register with the government for the privilege of mentioning candidates.
Here’s how the scheme was going to work. Under Wisconsin’s campaign finance statutes (pdf) a group or individual must register with the state if they receive contributions or make “disbursements” of over $25 in a calendar year. “Disbursements” is further defined as spending on a “communication” for a “political purpose.” There are some minor exceptions to what constitutes a “disbursement” but it includes spending money on “correspondence” that is reproduced by a machine. Heard of email? Yes, your spending on your computer, your smart phone, or your service plan, that enables you to send emails, or set up a webpage (every heard of Facebook? Twitter?) that are for a “political purpose” would qualify.
But, c’mon! “Political purpose” and “communication” must be very narrowly-defined, right? That’s where the State’s new rules come into play. Under the new revised Governmental Accountability Board (“GAB”) Rule 1.28, (pdf) a “communication” is defined as “any printed advertisement, billboard, handbill, sample ballot, television or radio advertisement, telephone call, e-mail, internet posting, and any other form of communication that may be utilized for a political purpose.” The new rules further state that “a communication is for a ‘political purpose’ if” the communication is made within 60 days of a general election or 30 days of a primary election and “1. Refers to the personal qualities, character, or fitness of that candidate; 2. Supports or condemns that candidate’s position or stance on issues; or 3. Supports or condemns that candidate’s public record.”
How many of you have ever sent an email or posted on Facebook or to a blog how you feel about a politician? If within 60 days of a general election or 30 days of a primary you would have to register with the state, establish a separate account at a bank, report all expenditures you make, including within 24 hours if less than 15 days prior to an election, and, among other things, place a disclaimer on all of your communications identifying yourself. If you made an anonymous post to a blog through a computer and service plan that you pay for you would be violating the law.
Needless to say, in our interconnected age, this could affect every sentient being in Wisconsin. Posting “Governor Smith is a bum” on Facebook without registering with the state would be illegal.
Note that this would apply even if your speech had nothing to do with an election. Say you are mad about the state’s management of a park, and want to tell your Facebook friends that a politician has done a lousy job cleaning it up. If the politician happens to be running for office during the relevant time period you would have to register.
It goes without saying that this new rule is massively unconstitutional. The Supreme Court has never condoned reporting requirements even close to this. Further, the new rules go so beyond the laws the legislature has actually passed that the State has admitted the rules were adopted without proper authority. Therefore, in the lawsuit against it in federal court in the Western District of Wisconsin it has agreed to a permanent injunction against the enforcement of the definition of “communication for a public purpose.” In return, the plaintiffs are dropping their First Amendment claims.
The regulatory scheme is still a huge burden on speech, however, and it may be that the other two suits continue their claims that the scheme nevertheless violates the First Amendment.
This is another example of why disclosure laws are not costless. They are pernicious invasions of citizens’ speech and privacy.
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