There have long been plenty of methods for corporations, special interests and wealthy individuals to pour money into political campaigns without having to publicly disclose their activity, but recent action by Wisconsin regulators suggests even fewer state political groups will be subject to regulation, at least in the near future. Wisconsin’s Government Accountability Board, the state agency that monitors elections, recently told a number of electioneering groups — conservative and liberal — that they are welcome to disclose their spending activity and donors, but are not required to. That is a change from previous years in Wisconsin, when, at the very least, groups that expressly advocated for the election or defeat of a candidate have been required to periodically submit financial reports that listed their donors and spending activity. Groups that engaged solely in “issue advocacy,” meaning they did not produce advertising using words such as “vote for” or “vote against,” were not required to disclose. Now, however, the GAB is allowing even groups that engage in a certain amount of express advocacy to forgo disclosure. “We aren’t going to force you to report just because you’re making independent expenditures,” explained Kevin Kennedy, director and general counsel for the GAB.
The change is prompted by a decision handed down in May by the U.S. Court of Appeals for the 7th Circuit in Chicago that declared a number of Wisconsin campaign finance rules unconstitutional and deemed the criteria for determining whether a group was a “political committee” and thus subject to regulation as too broad and too vague.
Whether a group can be subjected to the broad array of regulations imposed on candidates and political action committees hinges on whether the group’s “major purpose” is to engage in express advocacy on behalf of candidates.
Until now, groups that sought to avoid disclosing stayed away from express advocacy entirely, instead running ads that criticized or praised a candidate but did not use key terms, such as “vote for,” that would trigger disclosure. But Judge Diane Sykes, in writing the decision of the appeals court, argued that groups which expressly advocate for the election or defeat of candidates cannot automatically be classified as “political committees” if express advocacy is not their primary purpose.