oag5-10

¶34.

In Citizens United, the Court specifically upheld the application of federal disclosure and disclaimer requirements to the “Hillary” movie and three advertisements for the movie. 130 S. Ct. at 913-16. Those disclosure provisions mandate that a person file a statement with the Federal Elections Commission within 24 hours of making a disbursement “for the direct costs of producing and airing electioneering communications in an aggregate amount in excess of $10,000 during any calendar year . . . .” 2 U.S.C. § 434(f)(1). Disbursements in excess of $200 are required to be itemized, and individual contributors to the communication must be listed with a name and address only if the individual contributed over $1,000 during the year. 2 U.S.C. § 434(f)(2). Moreover, the communication must be “publicly distributed,” 11 C.F.R. §100.29(a)(2), defined as “broadcast, cable, or satellite communication” that can be received by 50,000 people in the relevant district or state. See 2 U.S.C. § 434(f)(3)(A)(i); 11 C.F.R. § 100.29(3). Compare with Citizens United, 130 S. Ct. at 897-98 (discussing federal PAC requirements); Federal Election Com’n v. Mass. Citizens for Life, 479 U.S. 238, 253-56 (1986) (discussing same, holding requirements may not be applied to certain incorporated groups); Wis. Stat. §§ 11.05, 11.06, 11.12, 11.14, 11.19, 11.20, 11.513 (setting forth Wisconsin’s disclosure requirements).

¶35.

In upholding those disclosure requirements as constitutional, the Court rejected the argument that disclosure and disclaimer “must be confined to speech that is the functional equivalent of express advocacy.” Citizens United, 130 S. Ct. at 915. This holding in Citizens United supersedes any contrary statements in earlier opinions of this office, including the discussion in 65 Op. Att’y Gen. 145 of the scope of activities that may be constitutionally regulated under Wis. Stat. ch. 11.

¶36.

After Citizens United, therefore, the distinction between express advocacy and issue advocacy, standing alone, is not constitutionally determinative. Accordingly, to the extent that Wis. Admin. Code § GAB 1.28 or Wis. Admin. Code § GAB 1.91 impose registration, reporting, or disclaimer requirements on independent expenditures that are not express advocacy or its functional equivalent, Citizens United does not clearly indicate the rules are unconstitutional. To the contrary, Citizens United recognizes that the Constitution does not categorically limit disclosure and disclaimer regulations to only express advocacy or its functional equivalent. Any potential conflict created by the rules are with the statutes,[7] not the Constitution. While this is no less of a serious concern for those who may be subject to the new rules, examining the statutory validity of these rules is beyond the scope of this opinion.

¶37.

It does not follow, however, that every disclosure or disclaimer regulation (whether applied to express advocacy or issue advocacy) is constitutional. The Citizens United Court acknowledged that “as-applied challenges [to disclosure regulations] would be available if a group could show a reasonable probability that disclos[ure] [of] its contributors’ names [will] subject them to threats, harassment, or reprisals from either Government officials or private parties.” 130 S. Ct. at 914 (internal quotations omitted).

¶38.

More generally, the Citizens United Court acknowledged that disclaimer and disclosure requirements “may burden the ability to speak,” and thus such requirements are subjected “to ‘exacting scrutiny,’ which requires a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” 130 S. Ct. at 914 (quoting Buckley, 424 U.S. at 64, 66). Finally, because intentionally violating the campaign financing law is subject to criminal penalties, see Wis. Stat. §§ 11.61(1)(a)-(c), consideration must be given to whether a statutory provision is unconstitutionally vague. Buckley, 424 U.S. at 40-41; cf. Citizens United, 130 S. Ct. at 895-96 (noting that complex speech regulations backed by criminal penalties force speakers to seek governmental permission before speaking, and analogizing the process to prior restraints).

¶39.

Nonetheless, because Citizens United did not address the constitutionality of disclosure and disclaimer provisions similar to Wisconsin’s provisions, the “reasoning and conclusions” of the decision are not “clearly applicable” to those provisions. 67 Op. Att’y Gen. at 214. Any further discussion of the constitutionality of the Wisconsin disclosure and disclaimer requirements is thus beyond the scope of this opinion.

¶40.

Finally, it should be mentioned, particularly in light of mixed messages that accompanied post-Citizens United rulemaking,[8] that Citizens United does not change Wisconsin law. While a United States Supreme Court opinion may provide guidance as to the constitutionally permissible scope of regulation, a United States Supreme Court opinion does not authorize regulatory activity. Only the Wisconsin Legislature, through its lawmaking powers, can change Wisconsin law or expand the scope of an agency’s regulatory authority.  

Conclusion

¶41.

In 65 Op. Att’y Gen. 145, this office determined that the State Elections Board (the predecessor agency of the Government Accountability Board) had the authority to decline to enforce those portions of Wis. Stat. ch. 11 that were unconstitutional and to interpret and apply other parts of Wis. Stat. ch. 11 so as to avoid unconstitutionality. Id. at 156-58. In addition, this office urged that Wis. Stat. ch. 11 be amended to make it consistent with the Buckley decision. Id. at 147.

¶42.

In the present situation, it is my understanding that the Government Accountability Board has already suspended its enforcement of the corporate expenditure prohibition in Wis. Stat. § 11.38(1)(a)1. I agree with that enforcement decision and would advise all district attorneys, in exercising their concurrent enforcement powers under Wis. Stat. ch. 11, to likewise interpret and apply Wis. Stat. § 11.38(1)(a)1. and (b) in a manner consistent with the views set forth in this opinion. I would also encourage the Wisconsin Legislature to amend Wis. Stat. § 11.38 to make it consistent with the Citizens United decision.

¶43.

No other aspect of Wisconsin law is directly affected by the clear application of Citizens United.

            Sincerely,

           

            J.B. VAN HOLLEN

            Attorney General

JBVH:RPT:KMS:TCB:rk

1

  In Wisconsin Right to Life, it was undisputed that a corporation’s advertisements, which clearly identified a candidate and were targeted to the relevant electorate during the pertinent time period, were within the scope of a federal statutory ban on certain electioneering communications. Wisconsin Right to Life, 551 U.S. at 464. The controlling opinion of the Court held that the First Amendment did not allow the ads to be banned because the ads were not “express advocacy” or its functional equivalent and the government had not identified any interest sufficiently compelling to justify burdening that speech. Wisconsin Right to Life, 551 U.S. at 481.

2

  This office has also in the past found the prohibition on corporate disbursements under Wis. Stat. § 11.38 to be similar to the prohibition on corporate expenditures under 18 U.S.C. § 610 (which was the predecessor version of 2 U.S.C. § 441b). See 65 Op. Att’y Gen. 10, 12 n.5 and 13 (1976); 65 Op. Att’y Gen. at 158.

3

Precision in the use of terminology is important with respect to the term “political committee” as well. In Buckley, political committees were discussed with reference to the permissibility of limits on their direct contributions to candidates. 424 U.S. at 35. As underscored in Citizens United, such direct contributions to a candidate by a political committee are subject to a lesser degree of constitutional scrutiny than would be applied to other political expenditures by the committee. 130 S. Ct. at 909 (distinguishing contribution cases from expenditure cases, stating that Federal Election Com’n v. Nat. Right to Work Comm., 459 U. S. 197 (1982) “decided no more than that a restriction on a corporation's ability to solicit funds for its segregated PAC, which made direct contributions to candidates, did not violate the First Amendment. NRWC thus involved contribution limits, which, unlike limits on independent expenditures, have been an accepted means to prevent quid pro quo corruption.”)(internal citations omitted).

4

  Unlike the statutory definition of “contribution” in Wis. Stat. § 11.01(6), Wis. Admin. Code § GAB 1.28(1)(c) (2010) defines “contributions for political purposes” in terms of the identity of the recipient. This regulatory definition, however, does not avoid the potential constitutional difficulty discussed above because “contributions for political purposes” are not limited to direct contributions to candidates and their committees. For example, a contribution to an individual who does not contribute to candidates but who engages in independent political speech would qualify under the rule’s definition of “contributions for political purposes.” See Wis. Admin. Code § GAB 1.28(1)(c). Such a contribution could be an “expenditure” within the meaning of Buckley and Citizens United, while also falling within the definition of “contributions for political purposes” in Wis. Admin. Code § GAB 1.28(1)(c).

5

  In 65 Op. Atty. Gen. 10 (1976) and 65 Op. Att’y Gen. 145, my predecessor issued opinions construing the scope of permissible prohibitions on corporate contributions and disbursements under Wis. Stat. § 11.38. These opinions were modified by 67 Op. Att’y Gen. at 214. Citizens United supersedes any contrary statements in earlier opinions of this office, and those opinions are further modified to the extent they are inconsistent with this opinion.

6

  Any corporation may also be a “group” as defined by Wis. Stat. § 11.01(10), and required to register by Wis. Stat. § 11.23. See also Wis. Stat. § 11.05(1)(a).

7

  The term “expressly advocate” is used in the definition of “political purposes,” Wis. Stat. § 11.01(16)(a)1. “Expressly advocate” is also used or incorporated independently of the definition of “political purposes” in statutes limiting who must register, what disbursements must be reported, and what communications are subject to disclaimer rules. See, e.g., Wis. Stat. §§ 11.05(11), 11.06(2), 11.30(2).

8

  Compare Notice of Order of the Government Accountability Board, EmR 1016, ¶ 3 of Analysis (May 20, 2010), ¶3 of Analysis (“Citizens United … strengthened the ability of the government to require disclosure and disclaimer of independent expenditures.”) with id. ¶ 5 of Analysis (“[T]his proposed rule requires organizations to disclose only those donations ‘made for’ political purposes.”). Nothing in the text of Wis. Admin. Code § GAB 1.91 directly contradicts the conclusions stated above.