Wisconsin Republicans, without going on-the-record with a vote, have used a legislative trick to block an election board rule that would have shed light on the corporate interests laundering election spending through front groups. The move echoes the American Legislative Exchange Council [3] agenda and will likely ensure a flood of secret ads and robo-calls for Wisconsin's 2012 elections.

Attack on Election Transparency Rule

In late June, the Republican-controlled Joint Committee for Review of Administrative Rules (JCRAR) passed a party-line "objection" to state election board rules that would have expanded the scope of political campaign advertisements that require the group running an ad, like Americans for Prosperity [4] or Club for Growth [5], to disclose the identities of the corporations, CEOs, or foundations funding it. JCRAR then voted on party lines to introduce Assembly Bill 196 [6] to not only overturn the election board's ability to make these types of rules, but to remove its authority to regulate ANY corporate "independent expenditure" election spending.

Four of the six Republicans on the JCRAR (Leah Vukmir, Daniel LeMahieu, Joe Leibham [7], and Glenn Grothman) are affiliated with the American Legislative Exchange Council [3], and their opposition to election transparency tracks an ALEC resolution [8]. (tip from Badger Democracy)

Parliamentary Trick Overturns Rule

Lawmakers had calendared the bill for Tuesday, September 16, the only day the legislature would meet this month, and subsequently referred [9] it back to committee. However, even without taking a public vote in favor of corporate rights and election secrecy, lawmakers were nonetheless able to suspend the underlying election transparency rule.

Badger Democracy [10] reports that because the JCRAR expressed its "objection" to the rule in AB196, and because that bill has been calendared in both houses, the election board's rule is now suspended under administrative proceedings statutes. The rule remains suspended until the bill is actually passed, or until it "expires" at the end of the current session (at which point, the legislature might be able to reinstate the rule suspension by going through the same process).

Legislature Overlaps with Simultaneous Tea Party Lawsuit

When the state elections board first promulgated the transparency rule in August of 2010, Tea Party groups filed lawsuits in both state and federal court challenging the rules, and the Wisconsin Supreme Court enjoined enforcement. That injunction allowed unprecedented levels of secretly-funded ads in the 2010 elections and 2011 recall elections.

The Wisconsin Supreme Court finally heard [11] arguments on the case on September 7, with Justice David Prosser recusing [12] himself because his election recount attorney, Jim Troupis, was also counsel for the Tea Party groups. CMD filed an amicus brief [13] in support of the rule.

AB 196 had already been introduced when the Court heard the case, but because laws are presumed not to have a retroactive effect, the state elections board believed the bill's passage would not overturn the contested rule -- it would only prevent the board from passing similar rules in the future.

The Court has not yet issued an opinion upholding the election board rule, striking it down, or narrowing it. The legislature's parliamentary trick, though, effectively preempts the court's decision in a way the parties did not appear to have anticipated. If the administrative rule is actually suspended by JCRAR's "objection" and by calendaring the bill in both houses, the court's ruling will have little impact (unless the bill comes to a vote and fails, or the suspension is not renewed next session).

In any case, it appears unlikely that any state election transparency rules will be in place for the 2012 elections, and the public will remain in the dark about who is funding the inevitable flood of attack ads and robo-calls.