Elections Board v. Wisconsin Manufacturers & Commerce

Wisconsin, Plaintiff- State Board of Elections Appellant, v. Commerce, WMC Issues & Manufacturers Wisconsin Corporation and XYZ Inc., ABC Council, Mobilization Defendants-Respondents. Corporation,

Supreme Court July January argument Oral No. 98-0596. 1999.Decided 7, 1999. 721.) (Also reported in 597 N.W.2d argued plaintiff-appellant the cause was For attorney general, by Cynthia with Hirsch, assistant R. (in Appeals) was James the Court whom on the briefs attorney general. Doyle, E. defendants-respondents there was brief

For (in Drops, Brady by Appeals) C. Robert J. the Court of Sinykin, Madison and & and LaFollette Williamson by Brady argument Williamson, C. Jr. oral (in Appeals) Court of was Amicus curiae brief Baran, Kirk Lincoln Jowers and Jan Witold filed Washington, Fielding, Wiley, D.C.; C. Robert Rein & Wagner Borgelt, Jeffrey Powell, Burrell, R. Peter- Stephen S.C., Frauen, Milwaukee; counsel, of A. son & Litiga- Bokat, Chamber Robin S. Conrad and National Washington, Jan Center, Inc., D.C.; Amundson tion Washing- Manufacturers, and National Association of of the United ton, D.C. for the Chamber of Commerce Manufacturers, of Association States, the National Wholesaler-Distributors, Food of National Association for International and the Association Distributors Technology. Manufacturing (in Appeals) Amicus of the Court was curiae brief by and Brennan Center Jus- filed Glenn Moramarco for tice, York, Elizabeth Adelman and New NY and Hynes, S.C., Milwaukee for Senator Adelman & Charles Chvala. (in Appeals) of

Amicus curiae the Court was brief Conley, by Winters, Fischer Brian D. Michael filed Dan Brady, & Quarles Milwaukee and Peter M. Koneazny, legal director, Milwaukee for the American Civil Liberties of Wisconsin, Union Inc. (in Appeals)

Amicus curiae brief Court was of by University Virginia filed Lillian BeVier and Law School, Charlottesville, VA and Paul W. Kilkelly, Schwarzenbart and Lee Kabaker, & Paulson S.C., for Madison the Wisconsin Grocers Association, Inc.

Amicus curiae brief was filed Pines, Lester A. Cullen, Weston, Curt F. Pawlisch and Bach, Pines & Madison the Madison Teachers, Inc.

¶ 1. CROOKS, N. PATRICK J. This case is joint parties' petition before the court as a result (Rule) bypass pursuant to Wis. Stat. 809.60 (1995-96).1 presented The issue is whether the circuit properly complaint court dismissed the of the Elections (the "Board") charging Board of the State of Wisconsin respondents with various violations the cam- paign finance laws contained in Wis. ch. Stat. following respondents' broadcast of several adver- respondents tisements. The Board contends that are subject regulation to ch. 11 because their ads had the "political purpose expressly advocating" the defeat or repre- re-election of the incumbent state senators and sentatives named in the ads. We conclude that respondents, they when broadcast the advertisements, warning qualify lacked fair the ads could as express advocacy in Wisconsin under a context-based approach. engaged Board, effect, in retroactive rule-making attempting apply approach. such an

1 All references to the Wisconsin Statutes are to the 1995-96 version. pro-

¶ due this violation Since of the fairness —is determinative cess—fundamental prosecuted respondents can be of whether these issue us involved, is need for to decide there no for ads advocacy. express We therefore are the ads whether of the Board's circuit court's dismissal affirm the complaint. ¶ of the determine that the definition 3. We also specific not limited to the list is term "magic or "defeat" found in such as "vote for" words" approach A to defin- 52. context-based footnote advocacy may present ing express an attractive several courts alternative, but we note that have rejected approach.2 If there is to be a further such an governing express advocacy attempt a rule to fashion leaving appropriately that task is left advertisements, legislature Board, this or the consistent with to the opinion.

H-1 respondents are 4. The this action four Wis- corporations.. Respondent WMC Issues consin (IMC), non-stock, Council, Inc., is a non- Mobilization support profit corporation receives financial which Corpora- Corporation respondents XYZ ABC from privacy, protect To IMC has refused to name tion. their Respondent ABC and XYZ. Wisconsin Manufacturers non-profit provides corporation, Commerce, also & a support to financial IMC. descriptively at respondents As stated oral counsel for

argument, voyage question "A into the of context not judiciary, swamp voyage it's a without end." Several cases, issue opinion, in this have discussed the set forth later context-based standard and voiced somewhat similar criticism. agency responsible

¶ 5. The Board is the state campaign the administration of the finance laws in Wis. 11 and Stat. ch. other laws to related elections and 5.05(1), campaigns. §§ See Wis. Stat. 15.61. In the involving of a event ch. violation a statewide election filing required report or the aof statement, or may bring Board a civil forfeiture action under Wis. 5.05(l)(c). § may § injunc- Stat. 11.60. The Board seek governing tive or relief other to enforce laws elections 5.05(l)(d). campaigns. § and The Board also has the power pursuant to enact rules to Wis. Stat. ch. 227 to interpret campaign and administer the election and 5.05(l)(f). laws. See produced October, In 1996, late IMC adver- referring legislators

tisements to six incumbent state hoping who were to 5, be re-elected the November general legislator's election. Each ad described a specific encouraged vote on issues and viewers or lis- legislator express approval to teners call the to disapproval legislator's position.3 of the The ads aired

3Following is the full text theof advertisements: Lynn standing way State Senator Adelman is reform. Voting against curbs on frivolous lawsuits that cost Milwaukee jobs. worse, putting rights What's Adelman's made a career of rights Voting deny employ criminals ahead of the of victims: right keep workplace. ers the convicted felons out of the That's wrong. Lynn Lynn That's liberal. But that's Adelman. Call Adel working rights, people man. Tell him honest have too. You-make-the-eall! Senator Chuck Chvala voted to increase taxes, taxes, gains by capital income sales taxes over a billion against largest property dollars. Then he voted tax cut in Wis "A," history. "B," "C," big spender? consin Is he: A liberal? A Out of "D," you above, you touch? Or All of the If "D" above? said all right right made call! Make another call to Chuck Chvala.. .He met tax never he didn't hike. followingmessage paid for WMCIssues Mobilization — Council, working public Inc. Businesses in the interest. There's in the state radio relevant television and/or stations on assembly districts. senate perfect with record. It's the tax team one team in Wisconsin still They Representatives Mike Dave Plombon and Wilder. of State nearly agree everything, voting with the Madison liberals on most Assembly, Plombon and voted ofthe time. In the State Wilder 100% Valley against cutting property Chippewa taxes homeowners. for Working they against spending together, controls on local voted against in government. voted millions Plombon and Wilder even Valley Represent- Chippewa schools. State additional state aid for The the and Mike tax team of atives Dave Plombon Wilder. spending. Wrong Chippewa Valley. on educa- on taxes and Liberal way playing your you If the the tax team is with tion. don't like Valley money, Chippewa call Tell them them at 1-800-362-9472. kids deserve lower taxes and our deserve better homeowners schools. against largest prop Representative the Dave Plombon voted average erty history. than 15% for the tax cut in Wisconsin More against Chippewa Valley an Then Plombon voted homeowner. right in for schools in his own additional 21 million dollars state aid Higher money Less our children. taxes district. Dave Plombon. today. consistently voting if he's for us. Call Plombon Because Dave Valley, just voting against Chippewa the he who is for? problem Representative Mike taxes. State has a with Wilder it came to cut in He doesn't like to. . .cut them. When a 14% homeowners, average Valley property Chippewa Mike the taxes for it million Wilder said And when came to an additional 33 ''No." right district, in for schools in his own Mike Wilder dollars state aid again. a him turned his us Mike Wilder call. Tell back on Give high taxes, you've got problem too. with Gary What Drzewiecki done for Northeast Wisconsin? has by average property cut will see their taxes an Homeowners Our schools receive millions in additional 11.5% children's will taxpayers get govern spending controls state aid. And will on local taxes, spending, less schools. a record we ment. Lower better It's Gary proud tell can all be of. Call Drzewiecki and him thanks. year, property This received their Wisconsin homeowners by Clausing. Alice She taxes cut almost 17%.No thanks to Senator history. against largest property in voted the tax cut Wisconsin against Clausing Then an dollars for voted additional million right Clausing. on in her own district. Alice Liberal schools— legislators ¶ 7. The featured ads filed complaints against administrative with the Board contending subjected IMC, the advertisements regulation IMC to under Wis. Stat. ch. 11. When the immediately complaints, Board did not address their legislators sought injunctive relief under Wis. Stat. § 11.66 in circuit courts around the state. On October County 31, 1996, the Dane Circuit ordered Court temporary injunction restraining IMC from broadcast- ing its circuit advertisements. The courts involved in swiftly suits related did the IMC same. filed an emergency petition supervisory for a writ with the appeals. appeals granted court of The court of the writ part part, leaving injunctions in place. and denied it March 14, On issued Board its regarding legislators' order com- administrative plaints. engaged Board found that IMC had comply and ordered IMC to with the provisions by April Specifi- Wis. Stat. 15,1997. ch. 11 cally, campaign the Board ordered IMC to file a registration campaign report statement and finance detailing received, all made or contributions and all obligations during incurred, disbursements made or 1996. comply

¶ 9. IMC refused to with the Board's by responded filing present order. The Board action County 26, Dane Circuit on In Court June its complaint, alleged the Board that IMC's advertise- "political purpose expressly ments had advocating" legisla- defeat or re-election of the named Therefore, tors. asserted, the Board the four .Wrong Clausing. Taxes. . on education. Call Senator Tell to her stop voting with those Madison liberals. Compl., 1-7. Attach. "WMC") to vari subject were (collectively,

respondents finance laws. campaign under regulations ous to with comply failed that WMC alleged Board Wisconsin's and had violated 14, 1997, order4 March (1) in vio to failing register by: finance laws campaign (2) file 11.05(1);5 to failing Stat. lation of Wis. § financial violation contributions regarding reports (3) to file financial 11.06(1)(a);6 failing Stat. Wis. § 11.20(1) (2);7 and Stat. and Wis. by reports required court, discern from the are unable to circuit we Like the respondents the the four complaint which of allegations in the 14, March failing comply with its responsible for deems Board respon complaint alleges that all Although the order. required by filing the the order comply with dents failed inconsistently its order somewhat reports, it also states 61-65; Compl. See only against respondent ¶¶ IMC. issued was at 6 n.3. Decision and Order 11.05(1) provides: Wis. Stat. § committees, groups individu- Registration political and groups (1) very than [E] committee other and als. Committees accepts contri- personal campaign . .which makes or committee. butions, obligations in a calendar or makes disbursements incurs file a statement

year aggregate $25 in excess of shall in an amount required giving appropriate filing the information officer with the (3).... by sub. 11.06(1) states: 6 Wis. Stat. § information; funding proce- application; report Financial report (1) registrant [E]ach under s. 11.05 OF dure. CONTENTS by reports, upon prescribed a form board make full shall (5), appropriate signed under sub. of all contribu- individual made, received, or disbursements tions contributions following report obligations shall contain the incurred. Each information...: (a) date, giving full name and An itemized statement in made a of each contributor who has contribution street address $20.... excess of 7 provides: 11.20 Wis. Stat. §

658 (4) making pur- contributions and/or disbursements for poses to a referendum, unrelated violation Wis. 11.38(1).8 sought per § Stat. The Board diem civil for- provided 11.38(4), §§ feitures as Stat. Wis. 11.60 and injunction requiring comply costs, and an WMC to with applicable statutory provisions. ¶ 10. WMC moved to dismiss the Board's com- plaint upon for failure to state a claim which relief can granted. January County be On 16, 1998, the Dane Judge presiding, Court, Circuit Sarah' B. O'Brien granted 29-page In decision, WMC's motion. the court adopt determined that the could Board a definition of express advocacy by other than the forth one set Supreme United States Court Valeo, v. 424 (1976) (per curiam), long U.S. 1 as as that definition requirements met the of the First and Fourteenth Amendments According the United States Constitution. court, to the the standard for advo- cacy urged by case-by-case the Board was a determination based on the five-factor test Crawford (Ct. v. Whitlow, 174, 183, 123 Wis. 2d N.W.2d (1) Filing requirements. reports required by All s. 11.06 which promote oppose relate to activities which or for state candidates office.. .shall filed with be the board.... (2) 11.06(1) Preprimary reports preelection s. under filing appropriate shall be received officer than no earlier days days preceding primary and no later than 8 and the election. provides: 8 Wis. Stat. 11.38 by corporations Contributions and disbursements (1) (a) cooperatives. foreign corporation.. .may or No domestic disbursement, any directly indirectly, make contribution or or any independently through political party, committee, either group, any purpose pro- candidate or than individual for other mote or defeat referendum.... 1985),9 App. fairly applied and could not be to WMC previously published because the Board had not or for- mally adopted Further, the court reasoned, it. unconstitutionally vague Board's standard was sufficiently compelling govern- was not narrow serve mental interests. conclusions, Based on its the court complaint prejudice. dismissed the Board's with apply ¶ 11. We a de novo standard when review ing complaint a circuit court's dismissal of a for failure to state a claim. v. Delavan, Hermann Town 215 Wis. (1998); 2d 370, 378, 572 855 Watts, N.W.2d Watts v. 137 (1987). 506, 512, 405 Wis. 2d N.W.2d 305 In review, our accept complaint we must as true all facts and all may reasonable inferences which be from drawn them. Watts, Hermann, 137 Wis. 2d at 512. See 215 Wis. 2d at proper only 378. Dismissal is when it is clear that the plaintiff any would not be entitled to relief under facts proved. which Hermann, could be 378; 215 Wis. 2d at Watts, 512; 137 Wis. 2d at Crawford, Wis. 2d at 178. complaint, alleges

¶ In its the Board subject regulation WMC is because its ads had "political purpose expressly advocating the defeat" or Whittow, 174, 183, In v. 123 Wis. 2d 366 N.W.2d Crawford (Ct. 1985), App. appeals adopted the court of the Board's determining five-factor test for whether an act "political was for 11.01(16). purposes" under Wis. Stat. The court § stated that "(1) following factors should be considered: the distributor's (2) office; political intentions as to materials; the content of the (3) (4) distribution; pattern manner of frequency (5) distribution; and the value of the distributed materials." Crawford, 123 Wis. 2d at 183. legislators.

re-election of the featured Under Wis. Stat. 11.01(16)(a)1, "[t]he making aof communication expressly which election, defeat, advocates the recall or clearly retention of a identified candidate ..." is an act "political purposes." payment "political A for purposes" made for

may qualify as a "contribution" under 11.01(6)(a)1 § or a "disbursement" under 11.01(7)(a)1.10 respondents' § It is the contributions triggered and/or that the disbursements Board asserts allegedly by the sections of 11 ch. violated WMC. Accordingly, complaint whether the Board's has stated upon granted a claim which relief can be would seem to upon depend whether WMC's advertisements consti 11.01(16)(a)1. express advocacy provided § tute as Statutory interpretation question ¶ 13. is a of although novo, law which this court reviews de we are by analysis in this benefited case of the circuit Menard, Inc., 174, 184, court. See Peters v. 224 2dWis. (1999); County Goode, 589 395 N.W.2d Forest v. 219 (1998). 655, 663, Wis. 2d main 579 N.W.2d 715 The goal statutory interpretation leg is to determine the Goode, 663; islature's intent. 219 2d at Inc. Wis. UFE v. (1996). LIRC, 274, 201 Wis. 2d 57 548 N.W.2d Our step plain language first is to examine the of the stat Peters, 184; Goode, ute. 224 2d at Wis. 2d at Wis. 11.01(7)(a)l "Disbursement" is defined Wis. Stat. to § purchase, distribution, advance, payment, loan, "[a] mean gift deposit money anything political or or of value.. .made for 11.01(6)(a)l Similarly, purposes." a defines "contribution" as loan, advance, gift, subscription, deposit money any "[a] or or thing political . . . purposes of value made ... ." Section 11.01(6)(a)4 "[a] states funds that transfer between candi dates, committees, groups subject filing individuals to requirement chapter" under this is also "contribution." meaning, susceptible language one If the is

663. meaning analysis adopt Goode, and our ends. we If, UFE, 201 Wis. 2d at 281-82. on 663; 2d at 219 Wis. interpret hand, minds reasonable could the other statutory thing, language more one to mean than ambiguous look sources and we to other statute decipher legislature's meaning. Peters, intended 2d at 224 Wis. 184-85. Express advocacy

¶ is not in the Wis- 14. defined meaning not of the term has been consin Statutes. The any published case, and Wisconsin clarified published express not a definition of Board has advo- cacy.11 turn, aid in therefore, to other sources for We interpreting the term. language was added Supreme Stat. ch. 11 the United States

to Wis. after Buckley Valeo, handed down its decision v. Court regulation, corresponding The Board's administrative 11.01(16)(a)l, Stat. refers to with § like Wis. 1998) defining (Apr., it. Admin. Code 1.28 out Wis. ElBd § provides pertinent part:

(1) in this rule: Definitions. As used (b) political purposes" "Contributions for means contribu- 1) 3) 2) candidate, political an made to or committee or tions purpose who. . of individual .makes disbursements expressly advocating or an identified the election defeat of candidate. (2) candidates other Individuals other than and committees political subject applicable to the than committees are disclosure- 11, Stats., requirements recordkeeping-related related and of ch. they:- only when (a) political purposes, Make contributions for (c) expenditures purpose expressly Make for the advocat- ing election or identified defeat of an candidate. curiam).12 (1976) (per § 27, U.S. 1 ch. 328, See Laws of Buckley, In 1979. the Court discussed constitution- ality provisions of several of the Federal Election (FECA).13 Campaign Buckley, Act of 1971 424 U.S. at emphasized protection political 6. The Court speech lies at the heart of the Amendment, First stat- ing, public "Discussion of issues and debate on the qualifications integral opera- of candidates are to the system government by tion established our Constitution. The First Amendment affords the ,"14 protection political expression. broadest to such . . Buckley, 424 U.S. at 1998) Similarly, (Apr., Wis. Admin. Code ElBd 1.28 was § by emergency promulgated Buckley.

created an rule after See 1977). (Jan., Op. Att'y Wis. Admin. Code ElBd 1.28 See § also 65 (1976) 145, 152, (advising Gen. the Board to enact emer gency adopting interpretation, rules a narrow consistent with Buckley, political activity of the regulated certain sections of 11). Wis. Stat. ch. (1976) Buckley Valeo,

13 The Court in (per v. 424 U.S. 1 curiam) actually considered the FECA amended in 1974. as See Buckley, 424 6 n.1. The portions U.S. at relevant of the FECA Appendix Buckley opinion. are set forth in the to the See Buck ley, 424 U.S. at 144-235. 14The provides, "Congress First Amendment shall make no .abridging law. . speech. right the freedom of . .or the of the Const, peaceably people to assemble." U.S. amend. I. The First applies through Amendment to the states the Fourteenth Commission, v. McIntyre Amendment. Ohio Elections 514 U.S. (1995). 334, 336 n.1 I, speech guaranteed by

Free is also Art. 3 of the Wiscon- Constitution, provides, "Every person may freely sin which speak, publish subjects.. write and his sentiments on all .and no passed abridge liberty laws shall be restrain speech to or of I, press." of the or Art. 4 of the § Wisconsin Constitution right people peaceably addresses free "The association: of the to 663 explained Buckley ¶ 16. The Court in that right closely First Amendment of association is related right speech. Buckley, to the of free 424 U.S. at 15. "[Effective advocacy public private points of both and particularly undeniably view, ones, controversial by group (quoting NAACP enhanced association." Id. v. (1958)). right Alabama, 357 449, U.S. 460 to asso right together ciate includes the to band for the purposes advocating political ideas or beliefs. See id. 15, at 22. See also FEC v. National Conservative Politi (1985) cal Action Committee, 480, 470 U.S. 494 [hereinafter NCPAC]. principles,

¶ 17. Based on these the Court held in Buckley invalidating provisions that it could avoid two 608(e)(1)15 expenditure FECA, § of the limit in requirements 434(e),16 grounds § the disclosure on vagueness only paid if it limited their reach to funds for political express communications that constituted advocacy. precisely, Id. at 80. More 434(e) 608(e)(1) §§ court held that could be constitutionally applied regulate payments "for com- munications terms advocate the clearly election or defeat of a identified candidate assemble, to good, consult for the petition common and to government, any department thereof, shall never be abridged." 608(e)(1) Section expenditures limited "relative to a clearly $1,000 identified candidate" per year. Buckley, 608(e)(1)). (quoting U.S. at 39 434(e) (other Section required an group individual or candidate) political than a committee or that made more than " expenditures $100 year contributions or pur one 'for the pose of. . .influencing' the nomination or election of candidates for federal office" to file a disclosing statement the amount con 434(e)). spent. tributed or Id. at 77 (quoting § discussing 608(e)(1), § at 44. In federal office."Id. the Court observed:

[T]he distinction between discussion of issues and advocacy candidates and of or defeat election of can- may didates dissolve in practical application. often Candidates, incumbents, are especially intimately tied to public involving legislative proposals issues governmental and actions. "clearly boundary Therefore, at

Id. 42. the mark permissible impermissible speech," between id. at political activity scope regulated by the 608(e)(1) § must be "limited to communications that explicit advocacy include words of election or defeat candidate," Court 43. the held. Id. at opinion, ¶ 18. Later in the Court determined 434(e) requirement § that disclosure "shares the potential encompassing same for both issue discussion political expenditure of a result" as 608(e)(1). explained §in Id. limit at 79. The Court "compelled seriously infringe disclosure, itself, can privacy guaranteed by on of association and belief Accordingly, First Id. at Amendment." the Court stated: 434(e)

To insure reach not impermis that the § sibly broad, "expenditure" purposes we construe of that way section in same we construed the 608(e) terms of reach funds used for com § —to expressly munications that advocate the election or defeat of a identified This clearly reading candidate. precisely is directed to that that is unam spending biguously particular related of a campaign federal candidate. 608(e)(1), 434(e), does not narrowed, like §

As only requires for it discussion partisan reach all that expressly expenditures of these disclosure election result. particular advocate omitted). (footnote Id. at the ¶ footnotes, Court elaborated on In the 19. 608(e)(1) 434(e) meaning §§ as of ofits construction advocate[s] "expressly only speech applying to which clearly identified candidate." defeat of a the election or that such a con- 52, the Court stated Id. In footnote 608(e)(1) application §of restrict the struction "would containing express words of advo- to communications cacy for,' 'elect,' defeat, such as 'vote election or Congress,' your 'support,' for,' 'Smith for 'cast ballot 'reject.'" against,' Id. at 44 n.52. Follow- 'defeat,' 'vote advocacy express ing standard as the its discussion of 434(e), applied § refer- the Court included a footnote ring at 80 n.108. to footnote 52. See id. back Supreme Although

¶ Court the United States Buckley dis cases, our research cited in several has applied in the Court closes express one which advocacy Citi FEC v. Massachusetts standard: (1986) [hereinafter Inc., 479 U.S. 238 Life, zens (MCFL) MCFL].17 Life had Citizens for Massachusetts recently considered Supreme United States Court provision, but constitutionality expenditures of a FECA by the fractured Court addressed opinions none delivered Buckley's standard. See Col application 518 U.S. 604 FEC, v. Republican Campaign Fed. Comm. orado (1996). granted certiorari has note that the Court has but We Eighth in Circuit yet argument in a case which the not heard campaign appeals held that Missouri's contribution court of Amendment. See Shrink Mo. Gov’t PAC limits violate the First (8th 1998), 519,523 granted, 119S. F.3d Cir. Adams, cert. v. (1999). Ct. 901 entitled,

distributed newsletter "Special Edition," in stating type, bold-faced YOU "EVERYTHING PRO-LIFE," NEED TO TO KNOW VOTE "VOTE PRO- LIFE," and "No candidate can pro-life win November MCFL, your without vote September." 479 U.S. at (emphasis original). Also on the printed newslet- ter were the names and of 13 photographs candidates in the state and upcoming federal elections had which records voting consistent with MCFL's position on cer- tain issues. Id. at 243-44. The newsletter contained a coupon the names of the listing candidates, "pro-life" be detached and taken readers, to the polls by as well as a disclaimer stating special "[t]his election edi- tion does not an represent endorsement of any Id. at 243. candidate." particular 21. The issue in MCFL whether, by was distrib- uting newsletter, MCFL had violated 441b FECA, which prohibits from corporations using trea- connection, sury funds for expenditures "in with" Id. at 241. The Court determined federal elections. Buckley, that, under 441b would be overbroad unless § the term "expenditure" 441b were construed as § Id. at 248-49. applying only to express advocacy. Utilizing this narrowing construction, the Court held that MCFL inwas violation of 441b because its news- § letter constituted express advocacy. Id. at 249-51. In Buckley this reaching holding, the Court interpreted as follows:

Buckley adopted "express advocacy" require- distinguish ment discussion of issues candidates from pointed more exhortations to vote particular persons. We therefore concluded in that case that a finding "express advocacy" depended upon the use of language such as "vote at "elect," etc., Buckley, supra,

for," "support," n.52. Buckley applied stan- The Court then

Id. at 249. newsletter: dard to MCFL's appears "Special in the such an exhortation Just only urges voters to The not publication Edition." candidates, also identifies and but "pro-life" vote for fitting candidates photographs specific provides regarded cannot as The Edition be description. by issues that their public mere discussion of politicians. the names of certain nature raise an directive: Rather, explicit it in effect provides (named) The fact that this candidates. vote for these "Vote for marginally less direct than message is nature. The change not its essential Smith" does express discussion to goes beyond issue Edition disclaimer of endorsement advocacy. electoral this fact. negate cannot con- that MCFL's newsletter

Id. The Court concluded advocacy purview express of 441b. within stituted Id. at 249-50. Buckley previously, and MCFL stated 22. As

comprise cases in which the the entire volume of applied express States-Supreme Court has United Buckley advocacy and MCFL do not read standard. We any specific requiring that a communication contain as advocacy. "magic in order to constitute words" merely are listed in footnote 52 The words undoubtedly examples constitute which words "express defeat," of election or as words of phrase of the "such as" the Court's use evidenced Buckley, immediately preceding the list of words. Buckley, 44 Consistent with when U.S. at n.52. Buckley MCFL, it footnote 52 Court summarized again phrase "such as." introduced the words with sug- MCFL, 479 U.S. at 249. The Court in MCFL also gested Buckley's that the list of words in footnote 52 exemplary, was exhaustive, not stated, when it "The message [in newsletter] marginally fact that this change less direct than "Vote for Smith" does not its phrases essential nature." Id. "Vote for" was one of the Buckley, used footnote 52. 424 U.S. at 44 n.52. ¶ Further, 23. it would be absurd to hold that particular "magic advocacy those words" of which the Buckley qualify Court chose to mention in footnote 52 express advocacy equally explicit as other, while words adopt do not. We can think of no reason to approach regulate an which would an ad said, which "Defeat Smith," but not an ad said, which "Unseat Buckley, Smith." See 424 U.S. at 44 n.52. Consistent with the well-established rule that should avoid we interpreting absurd results when statute, see Campenni Walrath, v. 548, 560, Wis. 2d (1994), particular "magic N.W.2d 725 hold we that no necessary words" are for a communication to constitute express advocacy. Buckley proposi- In view, our stands for the place reporting

tion that it is unconstitutional requirements disclosure on communications which do "expressly not advocate the election or defeat of a clearly Buckley, identified candidate." 424 U.S. at 80. Any express advocacy standard must be consistent principle with this in order to avoid invalidation on grounds vagueness MCFL, and/or overbreadth. See Buckley, 248-49; 479 U.S. at 424 U.S. at 80. We are political satisfied that for a communication or adver- express advocacy tisement to constitute under explicit language MCFL, it must contain advocat- ing clearly the election or defeat of a candidate iswho Buckley, 249-50; 479 U.S. at MCFL, See

identified.18 explicit n.52, n.108. The 43, 44 & 80 & 424 U.S. at specific from a need not have been chosen terms used "magic list of words." previously,

¶ there is no Wisconsin 25. As stated meaning regulation clarifying statute, case, advocacy express Stat. as used Wis. term 11.01(16)(a)l. Buckley MCFL constitute the authority courts on the sub- which Wisconsin binds ject.19 if advertisements follows, then, It that WMC's

18 argued language used the United It has been that fac suggests MCFL that contextual Supreme Court in States MCFL, advocacy. identifying express In are relevant in tors advocacy it was because Court stated that newsletter to vote for certain candidates. "in effect" instructed readers addition, MCFL, In the Court commented that 479 U.S. at 249. changed language is not even the "essential nature" of the for Smith.'" Id. though marginally it "is less direct than 'Vote argument Right in Maine Com The FEC made this Life rejected in that case it. See Maine mittee v. FEC and the court (D. FEC, 8, 11 n.2 Me. Supp. v. 914 F. Right to Comm. Life (1st 1996), denied, curiam, 1996), per F.3d 1 Cir. cert. 'd aff (1997). presence recognized that the 118 S. Ct. 52 The court newsletter, advocacy in MCFL's such as "vote express terms of for," that MCFL "loosened the Buck undermined the contention any ley requirement." Id. The Court in MCFL did not discuss holding that the newsletter was particular contextual factors MCFL, signifi express advocacy. See 479 U.S. at 249-50. Also of timing the indication in another case that cance is Court's on a referendum political of a "no" vote controversial "only strengthens protec "in the heat" of the vote to occur advocacy. by the First Amendment to the tion afforded" McIntyre, U.S. at 347. only by the questions, On federal this court is bound Thompson v. Supreme decisions of the United States Court. 289, 307, Corners, 2d 340 N.W.2d 704 Village Hales 115 Wis. (1983) Woods, (citing ex rel. Lawrence v. 432 F.2d United States explicit "advocating contained words the election or clearly defeat of a identified candidate," the ads would express advocacy subject regulation, pursu- be to ch. 11 ant to the rule of and MCFL. However, the Board does not assert any "magic

WMC’s advertisements include words." point any specific Likewise, the Board does not to phrases might words in the advertisements which qualify explicit as words which advocate the election or clearly get defeat of a identified candidate.20 To around urges this, the Board us to find that WMC's advertise- express advocacy upon ments are based the context in they argues which were broadcast. The Board that we case-by-case should evaluate communications on a labeling express advocacy basis, a communication suggests "unambigu- whenever its context it is ously campaign related to the particular. Buckley, . .candidate." 424 U.S. at 80. Among the factors the Board contends that we should proximity consider are the in time of the communica- underlying election, tion to an the intent of the communication, the effect of the communication, the (7th 1970)). 1072, 1075-76 opinions Cir. The value of the federal appeals courts of and district courts is limited to their persuasiveness. See id. 20 MCFL, Unlike the newsletter in the in advertisements election, this explicit case contain no references to an express no language suggesting that viewers or listeners should in a vote particular way, wording identifying and no the featured incum legislators bent as candidates in the November election. See MCFL, point U.S. only 479 at 243. We out this distinction purposes clarifying argument. the basis of the Board's For the text, necessary reasons made clear in the we do not it find determine whether WMC's qualify express advertisements as advocacy.

audience, of the area in proximity geographical and the voting the communication is disseminated to the which district of the featured candidate.21 contrary dissent, Despite position the taken the the beyond dispute premise that the central appears it to us to be adopt a context- position the Board's was that this court should advocacy. only glance at definition of One need based grasp following examples from the Board's in order to the briefs argument Board's clear in favor of a standard based on context: analysis unambiguity Not must the include the character and words, spoken. of the the context are but within which words States, opinion Justice Holmes noted his Schenck v. United (1919), every depends upon that "the character of act U.S. Schenck,

the circumstances in which it is done." 249 U.S. at 52. In ignore many places Schenck the court did not the fact that "in ordinary circulating pamphlets times" defendants' which argued against conscription Army during in the United States urged rights first World War and the readers to assert their under your "[y]ou and told them must do share to main- Constitution tain, uphold rights people country" support and of the of this rights. within their constitutional Id. would have been issues, speech on court's earlier decisions First Amendment itself, every speaker and the decision affirm what or lis- meaning speech tener knows: the cannot be determined without considering context, e.g., at least its immediate whether the thea- empty speaker yelled ter was or crowded when the "fire." See Schenck, at 249 U.S. 52. Board's Br. at 15-16. submits, however, case, permissible

The state that it is in this as standards, with other First Amendment to look at the context in speech Looking the which was made. at context does not mean changing subjective inappropriately the standard to a standard or examining respondents suggest. (Respon- intentions or motives as 23-24.) time, place dents' brief at Context is and audience and is examining speech. often relevant in First Amendment Reply Board's at 7. It well may be to consider con- appropriate in

text whether a communication determining constitutes It should express advocacy. be remembered by examining particu-

This court should consider context the effect speech given particular place. lar has on its audience the time and speech acceptable Consideration of the context of is in other First speech, "fighting Amendment venues. The doctrines of subversive words[,"] libel, speech workplace public and and in fora speech place illustrate that when where takes can determine legal significance. instances, its In these context is one of the cru- making speech regulatable [sic]. cial factors these kinds of First long recognized part Amendment doctrine has that words take meaning they their and effect from the environment in which are spoken. Furgatch, See 807 F.2d at 863. Furgatch weight given While court concluded that the to the speech may context of be lessened stan- when constitutional express advocacy, recognized dard is it that context is relevant to a express advocacy. determination of Reply argument, Board's at 8. At oral the Board shifted its position slightly, argue but continued to a for context-oriented express advocacy: standard of nothing Supreme says express is in the U.S. Court that

There opposite implied advocacy express advocacy is the opposite of an issue ad. What we have to do is read these ads as whole, nature, content, a look at their essential look at their entire they unambiguously campaign and decide whether relate to the particular candidate.... any authority prevents looking I don't think there's us from at context; fact, contrary, long Supreme on the there's a line of U.S. suggests every Court cases that what school child knows: whether you say empty "fire" in an theater or crowded theater makes a significant very difference. If we make a limited reference to con- case, time, place, I text this and submit and audience is the context, clearly then it affirms our—our—the clear answer that express advocacy shortly these are ads. The ads were aired before election, they geographical were aired in a area in which each of targeted they running candidates were were aired to an audience of voters who were about to vote for those candidates.... determining unambiguously I think in whether an ad is related to a time, campaign, may place a court make a limited consideration of Buckley express developed its definition of advo- that cacy interpreting specific In federal statute. while suggesting you replace- that context is a

and audience. I am not to Buckley ment for standard.... stated, say court that it is I would the standard is what unambiguously campaign par- spending to the of a that is related say go I then on to that in ticular federal candidate. would determination, determining making can certain factors be — language considered, I from the of the MCFL case and would draw Furgatch and the decision.... court, Bradley, During argument in Justice oral this dissent, argument characterized the Board's as author of the requiring a of the context of each individual ad. one review Bradley to for the Board: Justice commented counsel something bright-line dealing tests if There's to be said about we're large People number —volumes. have to have notice of what's with about, expected proceed. proposal in to Your talks "Let's look order at the essential nature each individual ad and review it in the that, Well, you know, things context." that's one of those after the earlier, fact, you might you've problem know if made a—have a on. you proposing that is akin to What kind of definition or contour are bright expected people line so that can have notice of what's than, expected, not rather "Let's take a look at each one individually?" added.) (Emphasis replied, "I understand Counsel the Board your question bright-line and much is to be said for a test in that simpler, I it's more convenient—it's it's easier to follow. submit you that there are other constitutional standards such as defined, obscenity precisely minimum that are contacts not asking that we are often in constitutional law courts to inter- asking judgment, I pret, we are courts to exercise and think that precisely why Supreme put examples the U.S. Court in a footnote...." note that the circuit court determined that the

We also attempting apply Board the five-factor test for was Crawford in "political purpose" this case. The Board claims its brief argued this court that it never that the five criteria Crawford determining the ads were should be used whether (9th 1987), Furgatch, 857, F.2d 863 Cir. 807 v. FEC (1987), the Circuit Ninth denied, 484 U.S. cert. advocacy express adopted when definition of a broader determining whether in is relevant it held that context advocacy. express political communication a following approach, Furgatch which court took presents alternative: an attractive any of the need not include speech conclude that

We express to be listed words whole, must, read as a Act, it when under the but events, limited external be reference to and with interpretation to no other reasonable susceptible against specific to vote for but as an exhortation candidate. explained

Furgatch, that The court F.2d at 864. speech message must be standard, the this under suggestive unambiguous, "unmistakable plea ] "present[ meaning," plausible clear it must one is advo- action "must be clear what action," and it "ancillary" an remains Id. Context cated." "peripheral to the stated, one consideration, the court specifically The court Id. at 863. themselves." words (within timing one of an advertisement on the relied election) concluding the ad was that of the week advocacy. Id. at Furgatch noted, however, that ¶ 28. It should be Supreme the United States mention of makes no pre though MCFL MCFL, even decision Court's nearly Furgatch by FEC v. See one month. ceded 1049, 1053 n.4 Network, Inc., 110 F.3d Action Christian in this that event, thoroughly satisfied advocacy. any we are In standard a context-based argued in favor of court, the Board Crawford, 123 See test of five-factor unrelated to the Crawford. 2d at 183. Wis.

(4th 1997). significant Cir. It is also that at least two regulation adopting FEC courts have held an Furgatch attempt to context-based rule of is an invalid advocacy.22 regulate Right issue See Dutchess Life of County, Supp. FEC, 50, F. Inc. v. 2d 253-54 249 - (S.D.N.Y. 1998); Right FEC, Maine Comm. v. Life (D. 1996), Supp. per curiam, 914 F. 13 Me. 98 F.3d aff'd (1st (1997). 1996), denied, 1 Cir. cert. 118 S. Ct. 52 rejected attempts Other courts similar to have broaden express advocacy. e.g., See, the definition of Faucher v. (1st 1991), FEC, 468, 928 F.2d 471-72 Cir. cert. denied (1991); Long 502 U.S. 820 FEC v. Central Island Tax (2nd Immediately Comm., 45, F.2d 53 616 Cir. Reform 1980)(en banc); Network, FEC v. Action Christian 894 (W.D. 1995), Supp. per 946, curiam, F. 'd 958 Va. 92 aff 1996). (4th F.3d 1178 Cir. Regardless might permissi- ¶ 29. of whether it be defining express advocacy, ble to consider context in we conclude, follow, for the reasons which that WMC had warning broadcasting insufficient before its advertise- ments that a context-based standard could be used to advocacy express determine that the ads were which subject regulation would WMC to under the Wis. Stat. provisions ch. 11 at issue. [persons are]

¶ 30. "Because assume that we free conduct, to steer between lawful and unlawful we insist 22Courts have deemed it "obvious" that 11 C.F.R. 100.22 § (b) directly language Furgatch, "comes from" the v. FEC 807 (9th (1987). 857, 1987), denied, F.2d 863 Cir. cert. 484 U.S. 850 Comm., Right Supp. Maine F. 914 at 11. See also Kan Life (D. Gaede, Life, 928, Supp. sans Inc. v. 38 F. 2d 937 Kan. 1999). regulations provide The FEC that a communication is Furgatch-based if it either meets the test of 100.22(b) explicit language advocacy. or contains § See 11 (1999). C.F.R. 100.22

676 give person ordinary intelligence laws opportunity prohibited, reasonable to know what is so she] may accordingly." [or Grayned City that he act v. (1972). 104, 408 U.S. Rockford, 108 Such notice is a requirement process. Grayned, basic of due 408 U.S. at implicated 108. When First Amendment interests are by may penalties,23 laws which result in criminal imprecise "may only 'trap standards not the innocent providing warning' 'arbitrary not fair or foster discriminatory application' operate but also to inhibit protected expression by inducing 'citizens to steer far wider of the unlawful . zone. .than if the boundaries of clearly Buckley, the forbidden areas were marked.'" (quoting Grayned, 424 U.S. at 41 n.48 408 U.S. at 108-109). Baggett Bullitt, See also v. 377 360, U.S. 372 (1958). (1964); Speiser v. Randall, 513, 357 U.S. breathing "Because First Amendment freedoms need space government may regulate survive, in the area specificity." Buckley, with narrow U.S. at (quoting n.48 Button, NAACP v. 371 U.S. (1963)). attempt apply

¶ 31. The Board's to a context- based standard to the ads involved in this case amounts to an after-the-fact effort to create a standard express advocacy which is broader than the standard existing in Wisconsin when WMC ran its ads.24 Unlike

23 penalties may Criminal result from intentional violations 11, although of Wis. Stat. ch. opt the Board did to seek such not 11.61(1). penalties in this case. See Wis. Stat. § find interesting We it that the Board's Executive Director apply did not a context-based in evaluating standard tran scripts prior of WMC's ads response to their broadcast. In to a by IMC, ap request Director, counsel for the Executive in October 2, 1996, letter, unequivocally, opinion stated "It is the of the subject Elections Board staff that these communications are not promulgated published its and Board, the interpretation the FEC has advocacy, statutory term of the test, an administra- a as includes context-based which creating attempting apply By to its rule.25 tive campaign disclosure law." regulation under Wisconsin's 50; Director’s App. at R. 15 at 4. The Executive Respondents' analysis wording the adver- a detailed of the opinion followed tisements, factors. no consideration of context-oriented with timing only briefly "[t]he mentioned that ofthe broad- The letter ads, political campaign, could raise in the midst of a cast of the essentially suggestion are candidate that these ads." Id. opted to treat WMC's motion apparently

The circuit court straight to dismiss rather than a motion for sum- as a motion therefore, mary judgment, did not consider this letter. The argument in in and oral letter was referred to counsel briefs only background it as material. this court. We mention provides: The FEC rule (17)). (2 Expressly advocating 100.22 U.S.C. advocating any Expressly means communication that— (a) President," your phrases "re-elect Uses such as "vote for the nominee," your Congressman," "support the Democratic "cast bal- Republican challenger Georgia," for U.S. lot for the Senate '94," Congress," McKay "Bill Pro-Life" or "vote "Smith for "vote by listing clearly accompanied candi- Pro-Choice" identified Pro-Choice, against dates described as Pro-Life or "vote Old Hickory," accompanied by picture of one or more candi- "defeat" date(s), incumbent," campaign "reject communications of or word(s), slogan(s) can have or individual which context no other meaning urge or reasonable than to the election or defeat of one candidate(s), clearly posters, bumper as stick- more identified such One," ers, advertisements, say '76," etc. which "Nixon'sthe "Carter "Reagan/Bush" "Mondale!"; or (b) taken as a and with limited reference to external When whole events, election, proximity could be inter- such as the preted by person containing advocacy of the a reasonable as candidate(s) clearly defeat or more identified election or of one because—

678 interpretation statutory new, context-oriented of the express advocacy, term has, effect, Board engaged rule-making. in retroactive See Wis. Stat. 227.01(13), 227.10(1); §§ Georgetown Bowen v. Univ. (1988) Hosp., (stating, 488 U.S. 204, 208-09 "Even justification where some substantial for retroactive rulemaking presented, is courts should be reluctant to authority express statutory find such grant"). absent an Schoolway Transp. See also DMV, Co. v. 72 (1976); 223, 236-37, Wis. 2d 240 N.W.2d 403 Franken thal v. Wisconsin R.E. Bd., Brokers' 2d 249, Wis. (1958), reh'g, 54, 88 N.W.2d 352 on motion 253 - (1958). 257a, Wis. 2d 257b-257c, 89 N.W.2d 825 We agree "pro with the circuit court that it would be foundly apply previously unfair to test, unarticulated retroactively, to these defendants." Decision and Order at 25. Supreme 32. The United States Court has held deprivation process right

that a ing of the due fair warn- vague statutory language, can occur not from (1) portion unmistakable, The electoral of the communication is unambiguous, suggestive only meaning; one (2) encourages Reasonable minds could not differ as to whether it candidate(s) clearly actions to elect or defeat one or more identified encourages some other kind of action. 11 C.F.R. 100.22. The § Wisconsin Elections Board has never promulgated any comparable setting rule interpreta- forth its "express advocacy" tion of as that term is used the Wisconsin Statutes. As stated in footnote 10 opinion, of this Wis. Admin. (Apr., 1998), Code ElBd 1.28 refers § but attempt, any way, does not to define it. (see 22), As we noted earlier footnote language of 11 100.22(b) C.F.R. language Furgatch, comes from the of FEC v. (9th 1987),

807 F.2d denied, Cir. cert. 484 U.S. 850 (1987). (a) Subsection regulation clearly that same from See, Buckley. Buckley, 424 U.S. at 80 n.52.

but also from unforeseeable and retroactive interpreta- tion of that Bouie statutory language. City See v. of (1964). Columbia, 347, 352, 378 U.S. 355 The Court indicated that a due process resulting violation from statutory retroactive of interpretation language is actually vague worse than a statute because it "lulls the defendant into a sense of potential security, false him even giving no reason to that he suspect" might be subject statutory to the Id. at 352. prohibition. Further, we decline the Board's invitation to craft a new standard of express advocacy for the state of such Wisconsin. creation of a standard is of properly legislature Board, the role and the not Mobil, Madison, this court.26 See v. Wagner City Inc. of n.4, 190 Wis. 2d 301 N.W.2d (1995)(recog nizing the well-established that principle Wisconsin requires separation Constitution "the of the legislative and See also judicial powers.") Wis. Stat. argues Buckley obligates The dissent this court to supply a "express advocacy" definition the term in Stat. Wis. 11.01(16)(a)1 grounds § to the statute from save invalidation on vagueness. argument misinterprets question This before question us. We are with the language not faced of whether the 11.01(16)(a)l concerning express advocacy in Wis. Stat. § and 1998) Wis. (Apr., unconstitutionally Admin. 1.28 § Code ElBd vague. statutory parrot language These code sections Buckley. already used in explained, express As we have advo cacy MCFL, has been defined both and MCFL. See 249; Buckley, n.52, 479 U.S. at 424 U.S. at 44 & & 80 n.108. In contrast, problem in this case is that the Board is attempt ing retrospectively apply respondents to the a context- oriented standard which has heretofore obligation been unknown in law. under Wisconsin We are no standard, adopt such warning and, where the lack fair effect, rulemaking pro retroactive amount to a violation of due cess, presented. and are determinative of the issue 5.05(l)(f). regulation The level of in this desirable policy depends upon public area considerations more appropriately explored in a forum other than this "peppered court. We have described our role areas political perceptions emotionally with laden interpreting scope views," as one restricted to requirements. Grover, constitutional Kukor v. 148 Wis. (1989). 469, 504-505, 2d 436 N.W.2d 568 ¶ 34. We conclude that under the circumstances case, WMC, this of when it broadcast its advertise- warning ments, had insufficient the ads could qualify express advocacy as under cam- Wisconsin's paign attempt . finance The Board's after-the-fact law. apply express context-oriented standard of advo- cacy fail, since, effect, it must was an unfair attempt27 rule-making, any at retroactive without express statutory grant authority, thus, a viola- process. prevents tion of due Because this conclusion prevailing any the Board from in this action under conditions, factual affirm the circuit court's dismis- we complaint. sal of the Board's

I—HI—I ¶ 35. Based on our conclusion that the Board may regulate campaign not under the finance WMC retrospective applica- in ch. 11 on the of the laws basis express advocacy, tion of context-based standard of we affirm the circuit court's dismissal the Board's complaint. holding places We stress that this no process

27 "[T]he due fundamental concern of fairness." Valk, 200, 205, Lyons 2d State ex rel. v. De 47 Wis. 177 N.W.2d (1970). D.H., 286, 296-97, 76 2d 106 See In re Wis. 251 N.W.2d 528, (1977)(quoting McKeiver Pennsylvania, v. 403 U.S. (1971)); XIV; I, art. U.S. Const. amend. Wis. Const. ability legislature

restraints on the of the and the Board to define further a constitutional standard of express advocacy prospectively applied. to be We encourage them so, to do as we are well aware of the types compelling may justify state interests which very some limited restrictions on First and Fourteenth rights. Amendment See Gard v. State Bd., Elections (1990), 28, 36, 156 Wis. 2d 51-52, 65, 456 N.W.2d 809 (1990) (upholding denied, cert. 498 U.S. 982 a contribu narrowly tion limit which was found this court to be compelling tailored to serve the state interest preventing apparent corruption politi actual or of the process). Michigan cal See also Austin v. Chamber of (1990); Commerce, 494 652, U.S. NCPAC, 658-60 Right 97; U.S. at FEC v. National to Work Comm., 496 - (1982); 197, 459 U.S. 207-208 First Nat'l Bank Bos (1978). Bellotti, ton v. 765, 435 U.S. 788-89 Consistent opinion, any with this we note that definition of comport requirements must with the ofBuck ley may encompass and MCFL and more than the specific "magic list of words" in footnote but must, however, be "limited to communications that explicit include words of of election or defeat of a candidate."28

By judgment the Court.—The and order of the cir- cuit court is affirmed.

¶ participate. 36. JON WILCOX, J., P. did not 28 Buckley, 424 U.S. at 43. The Supreme United States Court, previously, as required noted that the candidate must be clearly "a identified" one. Id. at regard 80. In requirement to the explicit language, we are mindful that in words one context may take on meaning different in another. recognize We that a number rejected of courts have a approach, context-based find ing comport that it did not holdings with the (See herein.) MCFL. paragraph footnote 18 and (concurring).

¶ BABLITCH, 37. WILLIAM A. J. Nobody, including attempting Board, the Elections is stop saying anything they say to from WMC want to during the election season. What is at stake here is public right paying whether the has a to know iswho say during for whatever it is wants WMC to the elec tion season. spin surrounding

¶ 38. this case has been trying speech. that the is Elections Board to stifle free public,knowing say- Not true. It's all about iswho ing what.

¶ An 39. informed electorate is to essential a healthy democracy. people If are told that a Ford is a great important people car, it is for to whether know Reports saying Similarly, Consumer or Ford is so. if the being great is electorate told that a a candidate is important people education, friend it is to know say- whether the teachers union or Common is Cause ing paid?" so. The answer "Who a lot of answers questions.

¶ 40. That here, is what is at stake and no spin amount be should able to hide that fact. Having join majority ¶ above, 41. I said opinion. agree I that WMC be should dismissed from regarding the case for lack notice what constitutes "express advocacy." preferred I would have that a majority way expressing could have found its a stan- by declaring that, dard future, ads such as these "express advocacy." joined constitute I would have result. Nevertheless, half loaf this instance presents

far than better no at all. The dissent loaf persuasive why well reasoned case as to these ads "express advocacy." constitute Does dissent acceptable yes. an me, standard? For Are there the votes for it? No. joined

¶ 43. If I dissent, the result would be a 3-3 vote. Guidance is needed and a tie vote does not provide guidance. opinion A tie vote results in no guidance therefore no standard or from this court on very issue that needs resolution. Because there is present appellate at no issue, decision on the we would appeals have to remand to the court of for their deci- yet appeal. sion, then consider another Meanwhile, at cycles go. least one or more election would come and Wisconsin would continue to have no standard as to "express advocacy." legislature what constitutes potential Board, the Elections as well as advocates such as the Wisconsin Association, Manufacturers completely would be left in the dark as to whether ads any "magic regu- that do not contain words" can be lated. Drafters of a standard would not know whether they approach. should even consider a context based majority opinion, despite 44. The the words of provide guidance. dissent, does some needed It does provide guidance not all the wants, the dissent but guidance this instance some is better than none.1 1 I preferred would have closely a decision that more echoed respects, dissent some say but that it is that the not majority opinion voices a decision disagree. with which I It is of importance provide guidance case, utmost in this which the majority effectively, correctly. does why and does join That is I it. It go does not far prefer, as as I would but judges most have joined opinions go a bit farther or less far than we would (1954). Education, like. See Brown v. Board 347 U.S. 483 See Farber, al., also Daniel A. et Constitutional Law: Themes from Century (1993); Constitution's Third Katcher, 50-52 Leo Warren, (1967). Earl A Biography Political By my joining majority, legislature

¶ 45. the the or the board free elections is now to craft standard a for "express advocacy," knowing that at the least there is requirement "magic no for words," and the that court will an consider as alternative a context based approach. I invite one or the other or to craft both a .posthaste. standard.. (concurring

¶46. DAVID T. PROSSER, J. in part, dissenting part). in The First Amendment is not today protect what it used to be. It is fashionable to speech1 expressive pure deviant speech and conduct.2 But public public which discusses issues and offi- impulse government cials is vulnerable to the regulation. join part IWhile that of the court's decision dismissing against respondents, suit the the I dissent majority opinion. from much in the ¶ respon- 47. Little is made of the fact dents case went this to the State Elections Board for Judicial decision-making necessarily variety involves of clear, always choices. Would that the be best choice but it is not. may, blush, appear Some at but, choices first to preferable, be perspective whole, looked at it of the are not. That is what I happened compromised. appellate judges here. Most do. Some- choice, variety reasons, times the best for a not one's first choice. opinions compromise,

Judicial are filled with and we should deny Benjamin said, not As judges it. Cardozo "do not stand heights; aloof on chill and distant help and we not shall by acting cause of truth speaking they as if do." Zarnke, 116, 1 See State v. 224 Wis. 2d 589 N.W.2d 370 (1999). Lounge Management Trenton, See Town v. 219 Wis. 2d 13, (1998); Janssen, 580 N.W.2d 156 v. State 219 Wis. 2d (1998). 580 N.W.2d 260 op. broadcasting Majority

guidance their at ads. before acqui- Only they government received 677, n.24. after they go Thereafter, several forward. circuit escence did pure speech enjoined ads these courts broadcast Then Elections Board while the ads were on the air. filing position compel tried to its reversed reports. various present episode The case is new this encourage gov- majority appears

saga. opinion rule-making extend the boundaries of ernment encouraged advocacy." "express to Rule-makers are through quicksand en route "context" to march political perfect and The dissent more correct order. impose act; can't for others to it wants the court to wait opinions Both soar into its own rules here and now. pronouncements regulation speech after a clear about majority this that no court decided we have viable us. case before regulating political

¶ 49. Wisconsin Statutes narrowly very expression must be construed. O.A.G. (1976). "express advocacy" encompasses If the term magic in footnote 52 more than words enumerated (1976) curiam), Buckley (per Valeo, v. 424 U.S. phrases explicitly and be the additional words should phrases Those and must advocate the disclosed. words clearly by election or defeat of a identified candidate urging directing citizens or them to take how to vote specific unambiguously to other action related an election. The First Amendment is inconsistent with expres- people

rules that leave doubt whether their regulated. is It does not countenance enforcement sion govern- against speech by on a case case basis where regulators permitted ment are inferences from draw guess people's circumstances about motives. probably any ¶ 51. It is ill-advised to make com- "express advocacy" ment about in this case it because really advisory opinion. amounts an (dissenting).

¶ 52. BRADLEY, ANN WALSH J. majority ways: cannot have it both it cannot both uphold the at law while the same time decline to acknowledge apply enforce it. Either it must already standards established two United Supreme States express Court that cases have addressed or, unclear, if that standard is it must do the business of a court and articulate constitu I tional standard. Because that believe it should do the dodges accomplish former, it the end the issue ing respectfully neither, I dissent. my agreement

¶ 53. At I the outset want to note majority. agree majority, with the particular Like I no

magic necessary words are for a communica- advocacy. Majority op. tion to constitute at 669. majority, agree setting Like the may I that the contextual assist the consideration of an whether ad express advocacy. majority, 654,673-75. Id. at Like the (1976) agree (per I Valeo, v. 424 1U.S. curiam), and FEC v. Life, Massachusetts Citizens for (MCFL), (1986), only Inc. 479 238 U.S. constitute the authority which binds Wisconsin the courts on issue. Majority op. majority part company, at 670. The and I acknowledge apply however, when it declines to already express advocacy. the established definition

I dodging relegating ¶ 54. In the issue and the defining advocacy legislature express task to the majority solitary Board, Elections the charts a course.

687 appears in the nation that the court It requires to be agency legislature to or administrative the express adding further definition the lead take advocacy. the have seen fit to tackle Other courts advocacy majority sweeps express the aside issue that interpret- though were the statutes those courts even ing See, them. did not have codified definition before (1st 1991); e.g., FEC, 468, F.2d 471 Cir. Faucher v. (9th 1987); Furgatch, 857, Cir. FEC v. 807 F.2d 859-60 Immediately Long Tax FEC v. Central Island Reform (en (2nd 1980) 45, 52-53 Cir. Committee, 616 F.2d (D.C. banc); Supp. 428, F. NOW, v. 433-34 FEC 1989). Cir. High Examining

¶ contours of the Court's 55. the express quintessentially is a con- definition inquiry. inquiries are Constitutional stitutional ultimately Thus, I of courts. find it diffi- business majority why hands cult to washes its understand of the matter. majority's

¶ 56. The error is further illustrated laudatory its comments of the Federal Election (FEC) rule-making process. It sees fit to Commission high praise adoption up hold the FEC's a defini- advocacy, at the time tion for while same Major- castigating of the Board. inaction Elections ity op. 677-79. at recognize majority However, fails to product agency's rule of that

that the FEC is not permissible plagi- juices is more creative but little than (a) taken arism of various court decisions: subsection (b) Buckley, 43-44, 79-80; subsection from U.S. at Furgatch, 807 F.2d at 864. See Maine is taken from (D. Right Supp. FEC, 11 v. F. Committee Life 1996). path of Me. Had these other courts traveled the majority majority, so the FEC rule that the finds noteworthy would not have come into existence. The FEC rule followed court decisions and is on based those agency decisions. The courts lead and the rules follow. majority equation errs when it reverses the relegates its to others. business majority really If, however, the believes apply express advocacy that it could not the term as 11.01(16)(a)1, § found Stat. Wis. or in Wis. Admin. 1998), (Apr. provisions Code ElBd 1.28 because those imprecise give majority are notice, too then the should find that enforcement would be a denial of due process they unconstitutionally vague. because are majority Instead, the takes the tack of mischaracteriz- ing position the Board's and based on that complaint finding mischaracterization dismisses the process right warning. denial of the due of fair majority opinion's ¶ 59. The conclusion that the complaint faulty should be dismissed is on a based premise foundation. It is built on the the that Board's express advocacy definition of It context based. needs premise this in order to arrive at its Such conclusion. foundation, however, position. the mischaracterizes Board's majority ignores repeated

¶ 60. The the state- position adopts ments of Board that its the applied by only definition as MCFL and that as a fall position back does the address a Board context-based majority excerpts Instead, definition. selects from arguments the briefs and oral that advance position fall back then concludes on those based excerpts attempting apply Board is an after- Majority op. the-fact context-oriented standard. at 677. position ¶ 61. This flies in face of the actual argument. Board advanced its brief and at oral position In its Board brief the takes the that the defini- tion of advocacy has been express by established the United States Supreme Court and no further definition of the standard is All explanation required. that court is required to do is apply definition to the advertisements at issue this case. State's br. at 9. 62. at oral Similarly, argument

¶ the Board stated the repeatedly position that sufficient definition of the standard could be found by applying already established Court's Supreme of express definition It advocacy: argued that there no was need to apply context-based definition. In arriving conclusion, at its misguided must, does,

majority ignore the following exchange and repeated statements of the Board setting forth its primary position.

JUSTICE CROOKS: What's your test opinion?

ATTORNEY THE FOR BOARD: The test that I'm suggesting Buckley is the test. The Buckley court express sets forth advocacy and it explains express advocacy by saying precisely it's related to the cam-, spending that is unambiguously related to the paign particular of a candidate.

JUSTICE CROOKS: say Doesn't it also expressly advocates particular election result?

ATTORNEY THE FOR Right BOARD: and in dis- cussing what express advocacy means, says, it "This reading is precisely directed to that spending that is unambiguously related to campaign of a partic- ular candidate." That's at page 80. I think in determining whether an ad is unambiguously related to a campaign, may a court make a limited time, consideration of place and audience. I am not suggesting you that context is a replacement the Buckley asking you standard. I'm not apply anything but

standard. And the attorney Board's stated: again

I submit that the content of these ads themselves are express advocacy. It is necessary not for us to make limited reference to external events....

And repeated: think,

I very and I want to be clear about this. These advocacy ads are express in and of themselves. . . . They are express advocacy regardless of they when are run. ...

And repeated:

I don't think important it's to a line draw because you I'm not to suggesting is the context test.... And repeated:

The Buckley prevails; Buckley standard the stan- express advocacy. dard is asking you We are not to change that standard....

And repeated:

[This to in Buckley court] has use the language and language the in MCFL and apply express the advo- cacy standard.. .. Contrary 64. to the repeated requests

¶ of the Board, the majority prefers to wait for the legislature or the to craft Elections Board a definition of express advocacy. That already has been done sufficiently by United Supreme the States Court. If the majority finds that definition then wanting specificity, it should relegate not the task further definition to some other entity. Crafting of this definition is the business certainly do, it to it most Whatever chooses court. perva- attempt cloak its inaction with a not to should Board's the Elections sive mischaracterization argument. HH majority, I would address Unlike dodge no invite rather There is need to issue than it. legislature a new the Elections Board craft already need exists. We standard because the standard majority rely "previously test," on unarticulated not op. effort create a stan- at or an "after-the-fact express advocacy," majority op. Rather, at 677. dard of already acknowledge apply I established would advocacy Buckley express set forth standards MCFL. govern

¶ 66. Court concluded that The regulate the ment could disclosure contributors spending "that is used for communications when clearly expressly defeat advocate election or of a Buckley, 424 U.S. identified candidate." at 80. precisely then defined the test Court as follows: to that reading precisely spending

This is directed is to the of a unambiguously campaign that related . .candidate.. . .Id. at 80. particular. Buckley, challenge

¶ course, a facial 67. was (FECA) Campaign Federal Election Act so the apply its did have occasion to test for Court not However, at time. in MCFL Court that opportunity just date, with, was faced its sole to do that. group incorporated

¶ MCFL, 68. In to "foster respect right for human life and to defend the to life of beings, produced "Spe- all human born and unborn" setting "everything cial Edition" of its newsletter forth you pro-life" upcoming need to know to vote in the MCFL, November elections. 479 U.S. at Though approximately its usual newsletter was sent to persons, printed copies 3,000 100,000 MCFL over ofthe "Special Edition."

¶ 69. The newsletter listed the candidates for every voting each federal and state office district Massachusetts and indicated whether that candidate's position corresponded on three issues with that of MCFL. Id. at 243. While over 400 candidates were picture "Special listed, 13 had their included in the positions Edition" and all 13 were candidates whose aligned entirely with that of MCFL the on issues listed. "Special 70. The Court determined that express advocacy. doing Edition" was In so, the Court first noted that the Court had "con- finding 'express advocacy' depended cluded. . .that a upon language 'sup- the use of for,' 'elect,' such as 'vote port,' MCFL, etc." 479 U.S. at 249. The Court then "Special "|j]ust stated that the Edition" included such an exhortation." Id. publication

The only urges not voters to vote for candidates, "pro-life" but also pro- identifies and vides photographs specific candidates fitting that description. The Edition cannot regarded be as a mere public discussion of issues that their nature raise politicians. Rather, the names of certain it provides in an explicit directive: vote for these effect (named) candidates. message this fact marginally less direct than "Vote Smith" does not added). change its essential (emphasis nature. Id. only Buckley Supreme

¶ Court's the 71. Were might matter, I more inclined to the be statement on agree concluded that courts that have with those "magic appear- advocacy requires express words" the synonyms. ing opinion However, read their in the actually High applied MCFL to see how the Court the test is so test, I do not believe that the delineating types speech constitute what limited advocacy. express

¶ If Court had seen fit to restrict 72. the MCFL "Spe inquiry appropriate the into the words of the its discussion to the Edition" it have limited cial would you flyer: "Everything "dangerous" language of the pro-life," Pro-Life," and "Vote "No need to know to vote pro-life your in November without candidate can win September." MCFL, However, U.S. at 243. vote 249. the Court did not. Id. at flyer ¶ Instead, the Court noted that the con- 73. message merely part its more than words. As tained pro-life photographs candidates. it of certain contained Buckley express Id. The Court determined that the possible advocacy exam- test is not restricted to a list of Buckley express ples Rather, the set forth a footnote. of the advertise- test looks to essence purpose. ment's applying In the Court focused on the test flyer. noted that

the "essential nature" of the It flyer reasonably regarded not be as a "mere dis- could "raise[s] necessarily public cussion of issues" politicians." Id. The Court noted that names of certain flyer "explicit provided "in directive" to effect" (named) Finally, Id. "vote for these candidates." flyer's message if Court noted that even the was "mar- ginally less direct than 'Vote for Smith'" its "essential advocacy. nature" constituted light writings, ¶ 75. In of these I cannot conclude Supreme express advocacy that the Court intended to exclusively be limited to a narrow band of exhortative discussion, words. Instead based on the MCFL we are look at the "essential nature" of the advertisement: merely pro- Is it one that issues, discusses and inextricably cess discusses candidates linked to those issues, or is it one that advocates some action for or against guise a candidate but does so under the of dis- cussing Ultimately, question issues? is whether the unambiguously advocating advertisement the elec- Buckley, tion or defeat of a named candidate. 424 U.S. at 80. approach, labeling

¶ 76. This advertisements as express advocacy when their essential nature unmis- takably advocates for the election or defeat of a congruous candidate, is more with the realities of both advertising speech. accuracy of this statement superficial is reinforced with even the most observa- advertising general. tions of Few advertisements directly say "Buy will Nike rather than Reebok" or they print "Drink Maxwell House coffee." Be in the normally media, electronic advertisements do not "magic relay include a call for action or use words" to message. every their reader, listener, Yet or viewer filling, great" unambigu- knows that "Less tastes is an purchase particular type ous exhortation to of Miller "They're Tony Tiger's beer, Gr-r-reat!" is unambiguous appeal buy sugar-coated a box of corn flakes. approach Supreme

¶ 77. The delineated Court does not stand for semantic Rather, shrewdness. approach its is to look at the essential nature of the approach open advertisement. Such an does not Pan- only applies either, dora's box for it to those susceptible to no other reasonable advertisements advocating interpretation the election or defeat of than encompass every attempt at a candidate. This does not through influencing the issues of debate issue adver- recognizes those It tisements. issues, must be on essential natures advertisements' not on candidates. standard, can no Under such a there be really here are

doubt that the advertisements at issue against. .specific "exhortation[s] to for or . candi- vote date^]." The essential nature of these advertisements advocacy. advocacy, is candidate not issue These adver- propping tisements mention issues up as a vehicle of away tearing particular Take or down a candidate. any- precious little, if references the candidates and thing, would remain of the advertisement. vilifying

¶ are 79. These advertisements about venerating they candidate; are not about issues. picture There is a of a candidate and a name of candi- predominates Consider, each advertisement. date that by example, following sponsored advertisement for WMC: year,

This Wisconsin homeowners received their by taxes cut almost 17%. No thanks to property Clausing. against larg- Senator Alice She voted history. in Then property est tax cut Wisconsin Clausing against voted an additional 36 million dol- district. Alice right lars for her own schools— Clausing. .Wrong Liberal on Taxes. . on education. stop voting Call Tell her to with Clausing. Senator those Madison liberals.

¶ such taxes and education 80. While issues as they advertisement, were discussed could not reasonably be considered the advertisement's essential Rather, nature. the essential nature of this advertise- public against ment was a directive to the to vote Clausing upcoming Senator in election. It unam- biguously advocates the defeat of a named candidate. Buckley, See 424 U.S. at 80. sponsored following 81. WMC also adver-

tisement: Gary

What has Drzewiecki done for Northeast Wis- consin? Homeowners will see their property taxes cut an average of 11.5% Our children's schools will receive millions additional state aid. And taxpayers will get spending controls on local gov- taxes, ernment. Lower spending, less better schools. It's a record we can all proud be Call Gary of. Drzewiecki and tell him thanks.

Again spending taxes, education, and were issues men- tioned in this advertisement. However, it unreasonable to consider the essential nature of this ad anything express advocacy to be other than for the clearly candidate. This was not a "mere discussion of public necessarily "raise[d] issues" that the names of politicians." certain MCFL, 479 U.S. at 249. a While may directive to call a candidate and thank him be "marginally less direct than 'Vote Smith,'" its express advocacy. essential nature is nonetheless Finally ¶ 82. I address the concurrence of Justice perplexed by Bablitch. I am the "half loaf is better than analysis. no loaf' I submit that whether we are left a loaf, loaf, with half a whole or no loaf at all should not legal analysis job our drive and conclusions. Our is to interpret apply legal precedents, and the on law based agree reason, and common I sense. with the concur- rence as it addresses the essence of this case but disagree approach. with its bottom-line approach

¶ 83. Such an undermines rather than expressed goals of the achieves the concurrence. As majority noted outset at the the and dissent are in agreement particular magic that no are words neces- sary a communication to constitute advocacy, setting may that the contextual assist the express advocacy, an consideration of whether ad is only and that and MCFL the constitute authority which binds Wisconsin courts on issue.

¶ 84. We should decide those as to issues which agree, acknowledge we a divided court on the remain- ing appeals issues, remand the case to the court of for a on the The decision issues divide us. court of appeals may already apply then the standard defined by Buckley adopted by majority. By and MCFL and joining majority's endorsing mandate but the dis- effectively rationale, sent's the concurrence eliminates possibility applied that the standard will ever be this case. Additionally, although

¶ 85. the concurrence by get asserts that its decision is driven a desire speedy delay answer, the route that it has chosen will prompt rather than achieve a resolution. The concur- legislature rence invites the Board Elections or the time-consuming they rules, establish venture that might assuredly, any not undertake. Most rules would challenged again up be the issue would end before path espoused by us to The decide. the concurrence delay. results in further began. majority I end where I errs in its ways. attempt upholds to have it It both the law but then around turns and declines to it. It enforce was day required path this to choose which it wished to apply express advocacy follow: standard defined Supreme vague, or, Court if that standard is too craft a better standard instead. It chose to do neither. I Supreme would have followed the Court's lead and assessed these advertisements under the essential nature standard of and MCFL. Because under such a standard these advertisements are advocacy, respectfully I dissent.

¶ 87. I am authorized to state that CHIEF JUS- joins opinion. TICE SHIRLEY S. ABRAHAMSON this

Case Details

Case Name: Elections Board v. Wisconsin Manufacturers & Commerce

Court Name: Wisconsin Supreme Court

Date Published: Jul 7, 1999

Citation: 597 N.W.2d 721

Docket Number: 98-0596

Court Abbreviation: Wis.