MADISON--The Center for Media and Democracy (CMD) has filed a brief with the Wisconsin Supreme Court defending proposed disclosure rules passed in the wake of the U.S. Supreme Court's Citizens United decision, rules that are being challenged by the Koch-funded group, Americans for Prosperity. In the brief, CMD also questions whether rights granted by Wisconsin's Constitution can be legitimately extended to corporations.
Disclosure Regulations and the Right-Wing Backlash
At issue are rules passed by Wisconsin's election board last summer that would expand the scope of campaign advertisements requiring public disclosure of the ad's funders. Under the old rules, ads that did not explicitly say "vote for X" or "vote against Y" were considered "issue ads" that could avoid disclosure laws, even if the ad was an obvious appeal to vote for or against a candidate.
As soon as the new rule was created, the Club for Growth filed suit in the Western District federal court, Wisconsin Right to Life filed suit in Eastern District federal court, and Americans for Prosperity and the MacIver Institute filed suit directly with the Wisconsin Supreme Court. Both federal courts stayed their decisions pending the outcome of the Wisconsin Supreme Court case.
In September, the Wisconsin Supreme Court enjoined enforcement of the rule and the 2010 elections took place without strong disclosure regulations. Secret spending increased dramatically in those elections, and citizens only knew the origins of about half of the dollars spent in 2010 (as compared to 97 percent disclosure in the previous midterm elections). Overall spending also increased, with groups taking advantage of the U.S. Supreme Court's controversial Citizens United ruling that allowed for-profit and not-for-profit groups to spend unlimited money influencing elections under the guise of free speech. The Wisconsin Supreme Court will now consider whether to lift the injunction and allow the rule to stand, or side with Americans for Prosperity and deem it unconstitutional.
CMD's Arguments for Disclosure
The following can be attributed to the Center's Law Fellow, Brendan Fischer: "We believe that knowing the financial interests behind political messages designed to influence elections is essential for citizens to make informed voting decisions. While we believe that the U.S. Supreme Court was wrong in overturning McCain-Feingold's restrictions on corporate political spending in the 5-4 Citizens United decision, we do agree with the Court's strong expression of support for disclosure. In our brief, we cite that opinion's disclosure language to defend Wisconsin's new rules against attacks by Americans for Prosperity, who would preserve the veil of secrecy that has tainted recent elections."
In the brief, CMD notes that weak disclosure rules create an environment that undermines justifications for reduced restrictions on "independent expenditures." The U.S. Supreme Court has reasoned that political ads or expenditures by "independent" groups are of little value to candidates if they are not directly coordinated with the candidate. On that point, CMD discusses how new groups forming post-Citizens United are operating in a highly-coordinated manner, and reference Scott Walker's request for independent expenditures in his February conversation with the phony "David Koch."
"We know the U.S. Supreme Court was wrong to give corporations and CEOs and the groups fronting their interests a blank check to spend unlimited money influencing elections, but we believe strong disclosures rules are essential to help address that ruling," said Lisa Graves, the Executive Director of the Center for Media and Democracy. "Political advertising by special interest groups is more valuable than a direct campaign donation to a candidate because there are currently no limits on how many millions any CEO or corporation can give to such groups to spend influencing an election in favor of a candidate and such groups can run spend millions in attack ads undermining the candidate's opponent. So, we are asking the Wisconsin Supreme Court to uphold this state's long commitment to clean government and shine essential sunshine on special interest groups like Americans for Prosperity and others that are spending big bucks to influence elections while keeping their major funders and amounts of donations from these big money interests secret from the voters."
Does Wisconsin's Constitution Protect Corporate "Rights?"
In the brief's final section, CMD argues that the Declaration of Rights in the Wisconsin Constitution may not extend to corporations. Section 1 in Wisconsin's Declaration of Rights, Article I, states that "[a]ll people are born equally free and independent," suggesting that all rights contained in the Article, including free speech rights, are available only to those who are "born," and not to artificial entities who come into existence through "incorporation." The brief states that "the corporation's founders may open a bottle of champagne to toast the occasion, and perhaps even pass around cigars, but it seems unlikely that anyone would throw a baby shower."
CMD is also supporting national efforts to overturn U.S. Supreme Court decisions that have struck down caps on corporate political spending by equating money with speech and granting corporations full political speech rights.