On behalf of the Wisconsin REALTORS® Association (WRA) we strongly urge you to oppose Senate Bill 2, legislation that would prohibit constitutionally protected free speech. Instead, we encourage you to consider appropriate reforms that will help restore public confidence in the electoral and legislative process. In this effort, we stand ready to work with you to develop meaningful campaign finance reforms.

Memorandum from Brady Williamson & Mike Wittenwyler, LaFollette Godfrey & Kahn

Provisions of SB 2

As drafted, SB 2 defines as express advocacy all political communication in the 60 days prior to an election that contains the name or likeness of a candidate or the name of a political party – even if the political communication does not expressly advocate the election or defeat of that candidate. Thus any corporate expenditure on political speech within 60 days of an election will be considered a “contribution” or “disbursement,” both of which are flatly prohibited under Wisconsin law. The net effect would be to ban a substantial amount of corporate political speech in Wisconsin.

Unconstitutional on its face

SB 2 is unconstitutional on its face. Attached to this cover memo is a detailed memo discussing the jurisprudence addressing the distinction between issue and express advocacy since the seminal U.S. Supreme Court case of Buckley v. Valeo in 1976. Viewed individually or collectively, these cases present clear and compelling standards upon which to judge the constitutionality of regulations on political speech. The bottom line: government can only regulate political speech that employs clear terms calling for the election or defeat of a specific candidate – or express advocacy. Everything else, including a discussion of issues and candidates, is free speech protected by the First Amendment and cannot be regulated. Based on the case law, it is clear that by prohibiting certain corporate political speech occurring in the 60 days prior to an election, SB 2 is unconstitutional.

While unconstitutional, SB 2 is not altogether novel

SB 2 proposes to establish a regulation based on the timing or context, as opposed to the text, of a political communication. While unconstitutional, this concept is not novel. Similar efforts to regulate issue advocacy by other states and the Federal Elections Commission, all have failed. Without speech that expressly advocates the election or defeat of a clearly identified candidate, the courts have consistently held that the First Amendment prohibits any regulation.

However, what is novel is SB 2’s proposed pre-election regulation of issue advocacy that contains “the name of a political party.” This provision is not only unconstitutional, it is unprecedented. We are aware of no other legislative proposal or law that has attempted to regulate such issue advocacy. Nowhere in Buckley or in any of the judicial decisions following Buckley does express advocacy include a political communication that mentions a “political party.” Finally, SB 2 is more restrictive than many of the failed attempts to regulate issue advocacy because it would apply not just to corporations but to individuals as well.

Context-based approach is wrong

SB 2 proposes that the “trigger” for regulation of political speech be proximity to an election. Any issue advocacy using the name or likeness of a candidate or political party is automatically deemed express advocacy solely because of its timing in relation to Election Day. The courts have repeatedly rejected the notion that timing should be the sole consideration in distinguishing express and issue advocacy. In SB 2, timing is not a factor; it is the factor, making it unquestionably unconstitutional.

Principles for Reform

The WRA supports real campaign finance reform legislation that:

• improves the quality and timeliness of public disclosures of political contributions given and received;
• restricts the solicitation of campaign contributions during session or in close proximity to it;
• provides an appropriate level of public financing in exchange for spending limits;
• is consistent with current U.S. Supreme Court as well as state and federal court decisions; and
• protects the constitutional rights of our association and its members to fully participate in the political process and exercise their constitutional rights of free speech and political association.

Conclusion

While we do not doubt the sincerity of those legislators and others who support SB 2 and other campaign finance reform initiatives, the First Amendment prohibits even this type of well-meaning regulation.

The courts have held – forcefully, repeatedly, recently, and virtually unanimously – that unless speech expressly advocates the election or defeat of a clearly identified candidate, it cannot be regulated. That is the constitutional standard, and it is the only standard.

This bill is not about disclosure or regulations; it’s about prohibiting political speech. We therefore respectfully urge you to reject SB 2.