The Wisconsin Supreme Court heard oral arguments Tuesday in a Tea Party challenge to proposed election spending disclosure rules. While billed as a case involving free speech and a possible response to the post-Citizens United [3] campaign landscape, the outcome may be decided on more mundane grounds of whether the state elections board acted within its statutory authority.

The election rule [4] (pdf) would expand the scope of political campaign advertisements that require the group behind an ad to disclose their funding and spending. Justice Prosser [5] recused [6] himself from the case because the attorney for the Tea Party groups, Jim Troupis, also represented Prosser during his election recount. Surprisingly, Troupis also stepped down, and Marquette Law School Professor, blogger [7] and President of the "Wisconsin Institute for Law and Liberty," Richard Esenberg, argued on behalf of the Tea Party groups. The Department of Justice (DOJ) and the Wisconsin Education Association Council (WEAC) teacher's union defended the rule, and the Center for Media and Democracy filed an amicus brief [8] in support.

"Issue" vs "Express" Advocacy

Under existing rules, only ads that use the words "vote for," "elect," "vote against," or the equivalent are required to comply with statutorily-defined registration and transparency requirements. (These ads are known as "express advocacy.") Ads that don't use these so-called "magic words" escape those disclosure requirements and get the title of "issue ads," regardless of whether the ad is clearly calling for the election or defeat of a particular candidate -- by asking "can we really afford him anymore?" [9] rather than stating "vote against him," groups have avoided compliance with disclosure laws, keeping voters in the dark about who is really behind the message.

True "issue ads" educate voters on a particular issue, such as a candidate's position on the environment or gun rights, but many ads lumped under the "issue advocacy" title are nothing more than personal attacks or generalized expressions of support for a candidate. To an average viewer, there is often little difference between "express advocacy" ads that use the magic words and "issue advocacy" ads that carefully avoid them. Both are clear appeals to vote for or against a candidate, but the law treats the ads entirely differently.

The issue vs. express distinction has contributed to an increase in secret spending in recent years. During the August recall elections, outside groups spent over $25 million on ads, and two-thirds of that spending escaped state and federal disclosure laws, according to the Wisconsin Democracy Campaign.

The new rule would use a common-sense test to determine if an ad not using the "magic words" of express advocacy actually has a political purpose. Under the rule, ads "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate" would be subject to regulation. The Wisconsin Supreme Court enjoined enforcement of the rule soon after it was published, pending the outcome of this case.

Free Speech and Citizens United

The briefings and rhetoric surrounding the case were largely framed as a battle over election integrity and free speech.

Tea Party groups alleged that the rule ran afoul of state and federal free speech precedent, and that the rule would require grassroots organizations or ordinary citizens register with the state when engaging in political activity. "To allow the rule to exist as broadly as it is would have a chilling effect on speech," Esenberg told reporters after the hearing.

The DOJ and WEAC pointed out that while the U.S. Supreme Court's Citizens United decision lifted bans on corporate spending, it also expressed strong support for disclosure. The Citizens United decision was considered a far-right activist decision when it was issued in January 2010, but the election landscape has shifted so quickly in its wake that those defending fair election rules now find themselves citing it to hang onto transparency amidst unlimited spending. (The Citizens United court wrote "the First Amendment protects political speech, and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way. This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.")

Election Board's Statutory Authority

Despite the free speech framing, during oral argument the justices appeared focused on how the rule would be enforced with respect to "express advocacy" and "issue advocacy."

WEAC attorney Matthew O'Neill responded that Citizens United established "in the realm of disclosure, issue versus express advocacy is out the window," as the Court supported disclosure requirements for all forms of political advertisements.

As argument progressed, it became clear the Court was not focused on the distinction between "issue" and "express" advocacy for purposes of a U.S. or state constitutional analysis, but to consider whether the state election board overstepped its authority when it created the rule. The board is only permitted to create rules interpreting election statutes created by the legislature.

Justice Bradley noted that the election statutes (Ch. 11) defines a message as having "political purposes" when it "expressly advocates" for the election or defeat of a candidate, and that the board's rule may have gone beyond that rule by defining political purposes to include "issue advocacy." Others noted that the Ch. 11 definition was not exclusive, and was preceded by "include(s) but not limited to." Justice Abrahamson pointed out that the Ch. 11 statement of policy called for giving "voters complete information as to who is supporting or opposing which candidate or cause," with the use of "cause" possibly encompassing issue advocacy.

What was never discussed was that the board's rule did not really regulate "issue advocacy," but created a more reasonable definition of "express advocacy" that did away with the fiction that an ad is discussing "issues" as long as it avoids the use of "magic words." The Court will likely issue its decision in the following months.