The Wisconsin Supreme Court on Monday unanimously dismissed a case challenging campaign rules that require financial disclosure from groups running issue ads for or against candidates.
The court also unanimously lifted its August 2010 injunction that prohibited the Wisconsin Government Accountability Board from enforcing the rules.
But the justices split 3-3 on the rationale for dismissal. Justice David Prosser recused himself from the case because he had hired one of the attorneys for the plaintiff to work on Prosser’s campaign recount effort in 2011.
Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley and Justice N. Patrick Crooks decided the GAB had the authority to enforce the rules on the grounds they are not on the surface in violation of the First Amendment.
According to the March 19 order, Justices Annette Ziegler, Michael Gableman and Patience Roggensack ruled the case should be dismissed on the grounds that it should not have gone before the court in the first place. That was the extent of their explanation.
According to a concurring opinion written by Abrahamson, their vote for dismissal was surprising given that in August 2010, Ziegler, Gableman, Roggensack and Prosser voted to grant the temporary injunction and agreed the petitioners had met their burden to show, among other matters, “a likelihood of success on the merits.”
“Because the three justices do not explain their vote for dismissal,” according to Abrahamson’s opinion, “we are left to wonder why they now fail to address the merits of the petition.”
GAB spokesperson, Reid Magney, said the agency is assessing the effect of the decision and what it means for two cases pending in the federal court’s eastern and western districts in Wisconsin.
Rick Esenberg, attorney for the Wisconsin Institute for Law & Liberty, said the Supreme Court ruling does not change the stance of the petitioners. He argued the case before the Supreme Court in fall.
While the GAB agreed not to enforce more controversial provisions, such as one that requires third parties disclose how they paid for ads, Esenberg said the amendments still violate free speech rights.
“We believe that even the rule as modified by the GAB was overly broad,” he said. “The dismissal is not on the merits, and we will assess what our next step should be.”
The case went to the court in 2010 after the GAB adopted amendments to campaign rules to require third parties who run issue ads disclose the purpose of the ads and where the parties got their money.
The rules also stated that ads would be subject to regulation if they contained language such as “vote for,” “elect” or “defeat.”
Shortly after the rules took effect Aug. 1, 2010, opponents of the amendments filed separate federal lawsuits in Wisconsin, followed by Wisconsin Prosperity Network Inc.’s petition to the Wisconsin Supreme Court.
Federal judges in the eastern and western courts halted proceedings until the Supreme Court ruled. That decision now clears the way for the two federal cases, both of which challenge the constitutionality of the GAB amendments.
Chief Judge Charles Clevert of the Federal District Court for the Eastern District of Wisconsin stayed all proceedings in Wisconsin Right to Life Committee Inc. v. Myse on Sept. 17, 2010, pending the outcome of the Supreme Court case.
Right to Life attorney James Bopp Jr., of Bopp, Coleson & Bostrom, Terre Haute, Ind., said he now will ask the federal court to delay implementing the rules.
“We will be promptly urging the court to address the merits,” he said, “and ask for an injunction.”
Bopp said the action by the Supreme Court won’t have any bearing on the Eastern District case.
“They didn’t make a decision,” Bopp said. “Three out of six is not an opinion. It’s as though it never happened.”
The Western District case, Wisconsin Club for Growth v. Myse, could be closer to a resolution because there is a joint agreement pending before Judge William Conley to implement a narrower version of the rules.
Madison attorney Mike Wittenwyler, of Godfrey & Kahn SC, is representing the plaintiffs in the case and said once the GAB comes up with a revised rule that Conley approves, the case will conclude.