Attorney: New campaign ad rules too broad (UPDATE)

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By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — A rule designed to regulate those nasty campaign ads that flood Wisconsin air waves every fall could stifle political speech across the state, an attorney for a coalition of conservative groups argued before the state Supreme Court on Tuesday.

The group wants the high court to strike down the rule. The regulation goes so far as to require people who don T-shirts, send casual emails or carry signs supporting a candidate register with the state and report their funding, Richard Esenberg, the attorney for the coalition, told the justices. It was unclear when the court might issue a ruling.

“To allow the rule to exist as broadly as it is would have a chilling effect on speech,” Esenberg told reporters after the hearing.

Kevin Kennedy, director of the state Government Accountability Board, which regulates elections, said those disclosure requirements have technically been part of state law for more than 30 years and challenging the rule is the wrong legal avenue.

“He should have challenged the statute, not the rule,” Kennedy said after the hearing.

The dispute centers around what’s known in political speak as express advocacy ads and issue advocacy ads.

Express ads ask viewers or listeners to vote for or against a certain candidate, while issue ads criticize a candidate’s response to an issue and ask the public to contact the candidate and express their anger.

Express ad producers must register with the state and report funding sources, but issue ad makers aren’t subject to those requirements.

Politicians have long complained about mysterious groups running issue ads that define their races.

Outside groups spent $15 million running ads for and against the nine state senators who went through recall elections this summer alone, according to government watchdog group Wisconsin Democracy Campaign.

Last year the Government Accountability Board tweaked language in its campaign finance rules that expanded the definition of express ads to include any communication that can be reasonably interpreted as an appeal to vote for or against a candidate, opening up more issue ads to regulation.

The board also declared that any ad filed within 30 days of a primary or 60 days of a general election that mentions a candidate, personal character, a candidate’s fitness for office or stances on issues are considered communications for a political purpose — essentially declaring that almost every ad within those time frames would be subject to disclosure.

Advocacy groups have balked at the changes. Esenberg’s group, which includes the Wisconsin Prosperity Network, Americans for Prosperity and a variety of state tea party groups, filed a challenge directly to the state Supreme Court. Other groups have filed two lawsuits in federal court. Those suits are on hold pending a decision in the state case.

The state Supreme Court last August blocked the accountability board from implementing any of the changes while it considers the challenge. The board late last year backed off the time frame changes but kept the rest of the rule intact.

Esenberg told the justices that state statutes require anyone who spends more than $25 on express advocacy must register with the state and disclose their finances. Since the accountability board’s rule still includes the expanded, reasonable interpretation definition of express advocacy, the board could require registration and disclosure from all manner of people who were not previously subject to it, he said.

If bloggers who spent more than $25 on an Internet connection start advocating for or against candidates, they would have to register with the state. The same would hold true for a college student who sends emails to friends asking them to vote for someone, Esenberg said. Even someone who spent $25 or more to buy a T-shirt or a create sign advocating for a candidate would be subject to disclosure requirements, he said.

“That’s overly burdensome,” he said.

Assistant Attorney General Thomas Bellavia tried to defend the board’s rule, but Justice Patience Roggensack peppered him with questions about how a prosecutor would prove an ad could be interpreted as express advocacy. Roggensack, who is viewed as a member of the court’s conservative majority, concluded that the test would be subjective. Bellavia referred questions after the hearing to Kennedy.

Kennedy told reporters that the $25 threshold would be in play in the examples Esenberg gave only if a campaign were actually under way. Those requirements have been part of state law since 1973, he noted, adding that Esenberg has chosen not to challenge them.