Friday, October 10, 2008

Effort to Force the Disclosure and Regulation of Phony Issue Ads Advances this Week

Press Release
October 10, 2008


Jay Heck – 608/256-2686

As Wisconsin and the nation anguish over the apparent national economic meltdown this week and wonder when it will reach bottom, there was at least a little bit of good news on the political reform front in Wisconsin.

On Monday, the Wisconsin Government Accountability Board sided with Common Cause in Wisconsin and defied threats of litigation made by attorneys opposing political reform and representing wealthy special interest groups by voting 5 to 0 to go ahead and draft an administrative rule that would require organizations that run widely disseminated campaign communications masquerading as issue advocacy, to make public the name of their donors and to have the funds paying for the communications be subject to Wisconsin's campaign finance limits.

"Phony" issue ads, such as those utilized extensively during the last two hugely expensive and nasty state Supreme Court elections in early 2008 (Gableman-Butler) and 2007 (Ziegler-Clifford) by Wisconsin Manufacturers & Commerce (WMC) and other organizations such as the "Greater Wisconsin Committee" and "All Children Matter," would be regulated and forced to disclose the name of their donors paying for those communications under the rule the GAB is in the process of writing and poised to adopt.

Common Cause in Wisconsin testified before the GAB on Monday and last August 27th as well and strongly urged that the new, independent state watchdog entity adopt such a rule. Voicing strong objection to the rule was Mike Wittenwyler, an attorney representing WMC and many other special interest groups. Wittenwyler and the other opponents of reform and transparency have all tried to make the case that the GAB did not have the authority to promulgate an rule regulating phony issue ads. This is a new strategy that comes in the wake of their previous, failed argument that disclosure of sham issue ads was unconstitutional in and of itself. The U.S. Supreme Court ruled in 2003 and again in 2007 that disclosure of phony issue ads that were "the functional equivalent" of campaign ads was indeed lawful. So the opponents of disclosure attempted to say the GAB can't force disclosure but only the Legislature can. Since any rule promulagated by the GAB is subject to legislative review, their argument is dubious. Legal experts from the Brennan Center for Justice at New York Univerisity, which CC/WI enlisted to submit a constitutional rule for Wisconsin to the GAB, says the GAB absolutely has the power and ability to render a disclosure rule. On Monday, the GAB agreed.

CC/WI has been engaged in this battle for the past 11 years. Most recently we supported Senate Bill 77, introduced by Senators Jon Erpenbach (D-Middleton) and Mike Ellis (R-Neenah) in 2007, which had impressive bipartisan and bicameral support and it would have closed this single largest, gaping loophole in Wisconsin’s loop-hole ridden campaign finance law. It is a measure that has been in the making for the past decade and it is an absolute no-brainer for Democrats and Republicans alike, to embrace and support. It doesn’t violate the first amendment, it doesn’t stifle free speech, and it doesn’t prevent any group from criticizing the government, as its opponents and critics deceivingly claim. It is constitutional and similar laws at the state and federal level have been upheld by the courts—including the nation’s very highest court.

Senate Bill 77 -- and the type of rule being drafted and considered by the GAB -- would do at the state level what the McCain-Feingold law has accomplished at the federal level which is simply to put teeth back into an existing, century-old law that prohibits unlimited, unregulated and undisclosed corporate soft money to be used – primarily for widely disseminated broadcast ads – to influence the outcome of state elections.

The phony issue ads that now proliferate our statewide and legislative elections have undermined a 1906 Wisconsin law that prohibited the use of corporate treasury money to influence elections and Senate Bill 77 -- and the type of rule being drafted and considered by the GAB -- would extend that prohibition not only to corporations, but also to the use of labor union treasury money and money from the general treasuries of Native-American Tribes and other entities. Because these phony issue ads avoid using a few “magic words” such as “vote for” or “defeat:, or “elect” or “support,” they have escaped regulation and disclosure requirements even as they have had the same effect on elections as communications that use such “magic words” Everyone knows these ads are a charade and it is well past time that they be brought under control in Wisconsin.

Undisclosed, unregulated phony issue ads not only undermine our elections but the money also gravely undermines the public policy-making process that follows elections because the specter of that political money hangs over many of the critical policy decisions made in the Capitol.

Senate Bill 77 -- and the type of rule being drafted and considered by the GAB -- simply stipulates that groups that utilize widely disseminated broadcast communications that depict or mention the name of a candidate within 60 days of that candidate’s primary or general election must use regulated, restricted and disclosed “hard” money to pay for the communications – just as candidates must do at all times. A similar provision in the federal McCain-Feingold law was upheld by the United States Supreme Court , in December of 2003. And similar phony issue ad regulation and disclosure laws have been on the books at the state level for many years, including in Connecticut and even in what we in Wisconsin used to consider be corrupt and lawless Illinois! If Illinois can require disclose and regulation of its political ads then surely Wisconsin can do as much.

More than ten years ago, Common Cause in Wisconsin first proposed a measure very similar to Senate Bill 77 -- and the type of rule being drafted and considered by the GAB -- for adoption by the State Elections Board in the wake of the first extensive use of phony issue ads by Wisconsin Manufacturers & Commerce during the 1996 state legislative elections. But the State Elections Board was too partisan and too divided to do the right thing and could not agree on an administrative rule.

Then, in 2000, Common Cause in Wisconsin, working with Senator Judy Robson (D-Beloit) and Representative Steve Freese (R-Dodgeville), put forward another measure very similar to Senate Bill 77. The measure received strong bipartisan support in passing the Joint Committee for the Review of Administrative Rules and on January 30, 2001, Senate Bill 2 passed overwhelmingly with a strong bipartisan vote of 23 to 10 in the State Senate. The following month it came within a single vote of passing in the State Assembly.

Now, seven years after that near victory for this measure, there have been millions of dollars more expended for undisclosed, unregulated phony issue ads. In 2001, phony issue ads were considered to be primarily a tool utilized to support of Republican candidates and against Democrats. Today, the are a plague on both of your parties with groups like the Greater Wisconsin Committee and the Native-Americans just as likely to pour hundreds of thousands of dollars of undisclosed, unregulated money into ads attacking Republicans as Wisconsin Manufacturers & Commerce is to savage Democrats.

Why should outside special interest groups be permitted to continue to use undisclosed and unregulated money for campaign ads when candidates for state office in Wisconsin must utilize only disclosed and regulated money? That’s like preparing to run a race with your feet tied together. This is a simple matter of fairness for candidates running for legislative and statewide office. And it’s a simple matter of fairness for the citizens of Wisconsin to be able to know who is paying for the communications they are forced to endure at election time.

Consideration, passage and enactment into law of Senate Bill 77 -- or the type of rule being drafted and considered by the GAB -- is critical to the process of beginning to restore citizen trust and confidence in Wisconsin’s elections, in our public policy-making process and in state government.

The GAB meets on November 11th to vote to promulgate the new rule or not. May they have the courage and independence to do so.