Submitted by Brendan Fischer on
Republican lawmakers in Wisconsin are fast-tracking a controversial bill to keep political donors secret, enact voter ID, and limit early voting, among other measures, with a vote scheduled for next week. The only public hearing on the bill was held Tuesday, where a representative of the business lobby made several misleading assertions about the bill's disclosure provisions.
"Our main message today to the committee is to please slow down," Jonathan Becker and Mike Haas of the state Government Accountability Board told the Assembly Committee on Campaigns and Elections.
"[The bill] is being rushed in a way that I feel is going to be detrimental for this state," testified Jay Heck, head of Common Cause-Wisconsin. "You need to slow way down before you rush this through."
The proposal, Assembly Bill 225, was announced on the Friday afternoon before Memorial Day weekend and quickly put on the calendar with just one public hearing. Announced in the midst of the budget-writing process that consumes most state news coverage, the sweeping bill from Rep. Jeff Stone covers an exceptionally wide swath of issues, from campaign finance disclosure to recount procedures to voter registration, making it difficult for the public to grasp the legislation, much less provide meaningful input. A vote is planned for next week.
"What could Wisconsin voters have possibly done to deserve such a restrictive law?" asked Andrea Kaminski, Executive Director of the League of Women Voters of Wisconsin.
Chamber Misleads on Campaign Finance Law
One of the bill's most controversial provisions would explicitly carve-out an "issue ad" loophole protecting dark money groups from ever having to disclose how much they are spending or where their money came from if they run campaign ads that don't explicitly call for the election or defeat of a candidate.
Heck pointed out that if the legislature created this disclosure exception for issue ads, "It doesn't take a genius to see where outside groups would go: why would [a donor] choose to disclose when you can do a phony issue ad?"
"Lets have a bipartisan discussion on making elections more transparent, not the hyperpartisan bill that is being pushed through," he said.
A representative of Wisconsin Manufacturers and Commerce (WMC), the state branch of the U.S. Chamber of Commerce, argued in support of the secrecy provision, but misrepresented the legal framework surrounding campaign finance law.
James Buchen, long WMC's chief lobbyist, claimed that unless an independent expenditure "specifically advocates the election or defeat of a clearly-identified candidate," you are "free from regulation and free to speak ... unregulated by the government."
"That's the law of the land today," he said.
In fact, Citizens United and a long line of related cases not only upheld, but encouraged, donor disclosure laws.
In Citizens United, the Supreme Court reiterated its holding in the 1976 Buckley decision that disclosure requirements "impose no ceiling on campaign-related activities" and the 2003 McConnell holding that such requirements "do not prevent anyone from speaking." The Court cautioned against groups "running election-related advertisements 'while hiding behind dubious and misleading names'" -- a problem that would become worse if the anti-disclosure provisions were enacted.
Among other justifications, the Court explained that the government has an interest in "provid[ing] the electorate with information" about the sources of election-related spending.
Buchen ignored the clear constitutionality of disclosure laws and rejected the notion that the public has an interest in knowing who was spending to benefit their elected officials. "The public doesn't really look into it that much anyway as a practical matter," he claimed.
Instead, Buchen said the main reason that transparency requirements should be eliminated is because he feared state action against disfavored political donors. But the U.S. Supreme Court has rejected challenges to the entirety of disclosure laws based on unsupported allegations of backlash, instead allowing groups to bring an "as-applied" challenge if they show a reasonable probability of retaliation.
WMC is apparently trying to sidestep the requirement that, to challenge disclosure laws, they must provide facts in court, under oath, that demonstrate a probability of retaliation. Instead, the business lobby is exerting their political influence to just rewrite the laws so powerful interests can continue spending secretly on elections.
WMC Like the NAACP?
Incredibly, WMC's Buchen compared the mortal threats faced by African-American civil rights activists in Alabama in the late 1950s with the undefined "retaliation" faced by wealthy political donors in Wisconsin.
Secrecy proponents like Buchen and Karl Rove have erroneously cited the U.S. Supreme Court's landmark NAACP v Alabama case as justification for keeping political donors secret.
In that 1958 case, the Court held that releasing the NAACP's membership list would endanger members' First Amendment freedom of association rights, since NAACP members had shown they faced severe intimidation both from private actors like the KKK as well as government officials if the list were made public.
But the corporate interests and wealthy donors represented by WMC are hardly powerless or disadvantaged parties who won't be protected by law enforcement against private actors, nor are they unable to vindicate their rights if they do face forms of prosecution from the state.
Very much on the contrary, a key reason corporations or individuals make political expenditures in the first place is to increase their political influence. And eliminating disclosure requirements allows these powerful interests to do so secretly -- which actually increases their relative influence, because it eliminates public accountability.
As Dale Ho, a lawyer at the NAACP Legal Defense Fund, told the Center for Media and Democracy last year:
"The underlying principle of [NAACP v Alabama] is the notion that the democratic and deliberative processes are best served by hearing from a wide array of viewpoints," Ho said. The court intervened in 1958 to ensure an unpopular perspective that was in the minority would not disappear as a result of state action.
"If the NAACP did not have anonymity in its member list it would not have existed," he says. "The Chamber of Commerce is not in same danger of not existing today if its member or donor list were disclosed."
Bill Threatens Voting Rights Gains of Civil Rights Era
Buchen's invocation of the civil rights era was not entirely misplaced. Other provisions of the bill include voting rights restrictions that would disproportionately affect people of color -- the same types of restrictions that the civil rights movement had fought against.
The bill would enact a modified voter ID restriction, despite 300,000 Wisconsin voters -- many of whom are people of color -- not having the forms of ID required under the law. It would end early voting on the weekends, eliminating the "souls to the polls" voting drives by churches, and limit it during the weekdays, which the bill's sponsor has acknowledged is directed at the cities of Milwaukee and Madison, where the state's minority populations are concentrated.
"We ask you to direct your efforts as our elected representatives to making our election process more open and expansive, not exclusive and restrictive," testified Tish Minor, Vice-President of the Milwaukee branch of the NAACP.
The NAACP, along with the immigrant rights group Voces de la Frontera, successfully challenged the voter ID law passed in 2011 (although the state is appealing the case). Rep. Stone's bill amends the voter ID requirement by allowing a voter to cast a ballot if they swear they are too poor to obtain an ID, which has been called a "humiliating" and "degrading" requirement to exercise the franchise.
"Despite the modest modifications, Wisconsin will still retain the most restrictive [and] prohibitive photo voter ID law in the nation, more so than Alabama, Louisiana, Mississippi and other states that have a history of denying people the right to vote," Heck said.
Whose Side Is This Bill On?
At the same time the bill narrows early voting, it expands the window for lobbyists to make campaign contributions. Currently, a lobbyist can only donate to a candidate between June 1 and election day -- which limits their ability to give money surrounding a key vote -- but the bill would essentially do away with that limitation and allow donations as soon as a candidate begins circulating nomination papers.
"I don't think anyone has ever said we need more lobbyists contributions in our campaigns," Heck said.
"On the one hand you have less time for early voting, on the other hand you have more time for lobbyists to give campaign donations," said Mike McCabe.
"It is not hard to see whose side this bill is on."
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