The Wisconsin Supreme Court will hear a case on a campaign finance rule that would require more groups to disclose funding sources used to make ads before an election.
After hesitating to take action, the Supreme Court decided Tuesday to take up the case, according to the court information officer.
The case involves an amendment to campaign finance law that requires advertisements shown in the weeks before an election to disclose sources of funding even if they did not expressly urge viewers to vote for or against a candidate or party.
Before the amendment, the Government Accountability Board finance rules required advertisers to disclose funding sources only for political ads shown 60 days prior to an election.
But issue ads – ads that highlight an issue rather than vouch for a certain candidate – did not require disclosure.
As a result, groups with political messages could make their ads appear to be issue-orientated in order to evade disclosure, said Jay Heck, executive director of Common Cause in Wisconsin.
“You can run a TV ad that we call a ‘phony issue ad, which is a campaign ad disguised as issue advocacy,” Heck said.
The “phony issue” ads were not considered political in nature and escaped the disclosure rule because they do not call for viewers to vote for, elect or approve of the candidate.
These are what Reid Magney, a GAB spokesperson, calls the “magic words.”
To fix the loophole, the GAB began a two-year process of studies and public hearings. The rule was then amended to require disclosure in ads even when they do not expressly advocate for a candidate or party.
According to Magney, these ads have no other reasonable interpretation than as an appeal to vote for or against a candidate.
The amendment passed through the Legislature, which permitted the rule to take effect on Aug. 1, according to the GAB.
The rule would have increased transparency through disclosures and allowed voters to make a more informed choice, said GAB Director Kevin Kennedy in a statement.
However, organizations across Wisconsin challenged the new amendment, claiming it infringed upon their First Amendment rights to free speech, Heck said.
Two lawsuits were filed in federal court, one by liberal advocacy group One Wisconsin Now.
Scot Ross, executive director of One Wisconsin Now, said in a statement the law infringes upon the right of individuals and organizations to comment freely on public policy.
“That is not just our long-held position, it is the U.S. Supreme Court’s long-held position, applying the First Amendment,” Ross said.
Ross added the amendment effectively silences public debate around an election.
Wisconsin Prosperity Network, Inc., among others, also petitioned the Wisconsin Supreme Court to look at the rule, and the court agreed to determine the constitutionality of the rule.
The court did not determine the legality of the amendment, but voted 4-3 in favor of temporarily preventing the GAB from enforcing it Aug. 12 until the court could hear the case in more detail, Heck said.
He added the court’s ruling contradicts three U.S. Supreme Court rulings in this decade that permitted states to enforce more expansive disclosure laws, concluding that disclosure does not violate free speech.
The Wisconsin Supreme Court will begin hearing oral arguments on March 9. The Wisconsin Department of Justice will represent the GAB in the case.