Elections Board of the State of Wisconsin v. Wisconsin Manufacturers & Commerce
Annotate this Case
Download PDF
SUPREME COURT OF WISCONSIN Case No.: 98-0596 Complete Title of Case: Elections Board of the State of Wisconsin, Plaintiff-Appellant, v. Wisconsin Manufacturers & Commerce, WMC Issues Mobilization Council, Inc., ABC Corporation and XYZ Corporation, Defendants-Respondents. ON BYPASS FROM THE COURT OF APPEALS Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: July 7, 1999 January 7, 1999 Circuit Dane Sarah B. O Brien JUSTICES: Concurred: Bablitch, J., concurs (opinion filed) Prossser, J., concurs in part, dissents in part (opinion filed) Dissented: Bradley, J., dissents (opinion filed) Abrahamson, C.J. joins Not Participating: Wilcox, J., did not participate ATTORNEYS: For the plaintiff-appellant the cause was argued by Cynthia R. Hirsch, assistant attorney general, with whom on the briefs (in the Court of Appeals) was James E. Doyle, attorney general. For the defendants-respondents there was a brief (in the Court of Appeals) by Robert J. Dreps, Brady C. Williamson and LaFollette & Sinykin, Madison and oral argument by Brady C. Williamson, Jr. Amicus curiae brief (in the Court of Appeals) was filed by Jan Witold Baran, Kirk Lincoln Jowers and Wiley, Rein & Fielding, Washington, D.C.; Robert C. Burrell, R. Jeffrey Wagner and Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee; of counsel, Stephen A. Bokat, Robin S. Conrad and National Chamber Litigation Center, Inc., Washington, D.C.; Jan Amundson and National Association of Manufacturers, Washington, D.C. for the Chamber of Commerce of the United States, the National Association of Manufacturers, the National Association of Wholesaler-Distributors, Food Distributors International and the Association for Manufacturing Technology. Amicus curiae brief (in the Court of Appeals) was filed by Glenn Moramarco and Brennan Center for Justice, New York, NY and Elizabeth Adelman and Adelman & Hynes, S.C., Milwaukee for Senator Charles Chvala. Amicus curiae brief (in the Court of Appeals) was filed by Dan Conley, Brian D. Winters, Michael Fischer and Quarles & Brady, Milwaukee and Peter M. Koneazny, legal director, Milwaukee for the American Civil Liberties Union of Wisconsin, Inc. Amicus curiae brief (in the Court of Appeals) was filed by Lillian BeVier and University of Virginia Law School, Charlottesville, VA and Paul W. Schwarzenbart and Lee Kilkelly, Paulson & Kabaker, S.C., Madison for the Wisconsin Grocers Association, Inc. No. 98-0596 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 98-0596 STATE OF WISCONSIN : IN SUPREME COURT FILED Elections Board of the State of Wisconsin, JUL 7, 1999 Plaintiff-Appellant, Marilyn L. Graves Clerk of Supreme Court Madison, WI v. Wisconsin Manufacturers & Commerce, WMC Issues Mobilization Council, Inc., ABC Corporation and XYZ Corporation, Defendants-Respondents. APPEAL from a judgment and an order of the Circuit Court for Dane County, Sarah B. O'Brien, Circuit Court Judge. Affirmed. ¶1 N. PATRICK CROOKS, J. This case is before the court as a result of the parties' joint petition to bypass pursuant to Wis. Stat. § (Rule) 809.60 (1995-96).1 The issue presented is whether the circuit court properly dismissed the complaint of the Elections Board of the State of Wisconsin (the "Board") charging the respondents with various violations of the campaign finance laws respondents' contends contained broadcast that in of respondents Wis. several are Stat. 11 following advertisements. subject 1 ch. to ch. 11 The the Board regulation All references to the Wisconsin Statutes are to the 199596 version. 1 No. because their ads had the "political purpose of 98-0596 expressly advocating" the defeat or re-election of the incumbent state senators and representatives named in the ads. We conclude that the respondents, when they broadcast the advertisements, lacked fair warning that the ads could qualify as express advocacy in Wisconsin under a context-based approach. The Board, in effect, engaged in retroactive rule-making in attempting to apply such an approach. ¶2 Since fairnessis this violation determinative of of due the processfundamental issue of whether these respondents can be prosecuted for the ads involved, there is no need for us to decide whether the ads are express advocacy. We therefore affirm the circuit court's dismissal of the Board's complaint. ¶3 We also determine that the definition of the term express advocacy is not limited to the specific list of "magic words" such as "vote for" or "defeat" found in Buckley footnote 52. A context-based approach to defining express advocacy may present an attractive alternative, but courts have rejected such an approach.2 we note that several If there is to be a further attempt to fashion a rule governing express advocacy advertisements, leaving that task is appropriately left to the legislature or the Board, consistent with this opinion. I. 2 As counsel for the respondents descriptively stated at oral argument, "A voyage into the question of context is not only a swamp for the judiciary, it's a voyage without end." Several cases, set forth later in this opinion, have discussed the issue of a context-based standard and voiced somewhat similar criticism. 2 No. ¶4 The corporations. (IMC), is a financial respondents in this action are four 98-0596 Wisconsin Respondent WMC Issues Mobilization Council, Inc., non-stock, support non-profit from corporation respondents ABC which receives Corporation and XYZ Corporation. To protect their privacy, IMC has refused to name ABC and XYZ. Respondent Wisconsin Manufacturers & Commerce, a non-profit corporation, also provides financial support to IMC. ¶5 The Board is the state agency responsible for the administration of the campaign finance laws in Wis. Stat. ch. 11 and other laws related to elections and campaigns. Stat. §§ 5.05(1), 15.61. involving report a statewide or statement, In the event of a ch. 11 violation election the or injunctive or other elections and campaigns. the Board may action under Wis. Stat. § 11.60. seek See Wis. relief filing bring a enforce § 5.05(1)(d). a civil § 5.05(1)(c). to of required forfeiture The Board may laws governing The Board also has the power to enact rules pursuant to Wis. Stat. ch. 227 to interpret and administer the election and campaign laws. See produced advertisements § 5.05(1)(f). ¶6 In late October, 1996, IMC referring to six incumbent state legislators who were hoping to be re-elected in the November 5, 1996, general election. ad described encouraged a legislator's viewers or vote listeners to on specific call the Each issues legislator and to express approval or disapproval of the legislator's position.3 3 Following is the full text of the advertisements: 3 No. 98-0596 [1] State Senator Lynn Adelman is standing in the way of reform. Voting against curbs on frivolous lawsuits that cost Milwaukee jobs. What's worse, Adelman's made a career of putting the rights of criminals ahead of the rights of victims: Voting to deny employers the right to keep convicted felons out of the workplace. That's wrong. That's liberal. But that's Lynn Adelman. Call Lynn Adelman. Tell him honest working people have rights, too. [2] You-make-the-call! Senator Chuck Chvala voted to increase income taxes, sales taxes, and capital gains taxes by over a billion dollars. Then he voted against the largest property tax cut in Wisconsin history. Is he: "A," A liberal? "B," A big spender? "C," Out of touch? Or "D," All of the above? If you said "D" all of the above, you made the right call! Make another right call to Chuck Chvala . . . He never met a tax he didn't hike. [3] The following message is paid for by WMC Issues Mobilization Council, Inc. --- Businesses working in the public interest. There's still one team in Wisconsin with a perfect record. It's the tax team of State Representatives Dave Plombon and Mike Wilder. They agree on most everything, voting with the Madison liberals nearly l00% of the time. In the State Assembly, Plombon and Wilder voted against cutting property taxes for Chippewa Valley homeowners. Working together, they voted against spending controls on local government. Plombon and Wilder even voted against millions in additional state aid for Chippewa Valley schools. State Representatives Dave Plombon and Mike Wilder. The tax team of the Chippewa Valley. Liberal on taxes and spending. Wrong on education. If you don't like the way the tax team is playing with your money, call them at 1-800-362-9472. Tell them Chippewa Valley homeowners deserve lower taxes and our kids deserve better schools. [4] Representative Dave Plombon voted against the largest property tax cut in Wisconsin history. More than 15% for the average Chippewa Valley homeowner. Then Plombon voted against an additional 21 million dollars in state aid for schools right in his own district. Dave Plombon. Less money for our children. Higher taxes for us. Call Dave Plombon today. Because if he's consistently voting against the Chippewa Valley, just who is he voting for? 4 No. The ads aired on television and/or radio stations 98-0596 in the relevant state senate and assembly districts. ¶7 The legislators featured by the ads filed administrative complaints with the Board against IMC, contending that the advertisements subjected IMC to regulation under Wis. Stat. ch. 11. When the Board did not immediately address their complaints, the legislators sought injunctive relief under Wis. Stat. § 11.66 in circuit courts around the state. 31, 1996, the Dane County Circuit Court ordered On October a temporary [5] State Representative Mike Wilder has a problem with taxes. He doesn't like to . . . cut them. When it came to a 14% cut in property taxes for the average Chippewa Valley homeowners, Mike Wilder said "No." And when it came to an additional 33 million dollars in state aid for schools right in his own district, Mike Wilder turned his back on us again. Give Mike Wilder a call. Tell him you've got a problem with high taxes, too. [6] What has Gary Drzewiecki done for Northeast Wisconsin? Homeowners will see their property taxes cut by an average of 11.5% Our children's schools will receive millions in additional state aid. And taxpayers will get spending controls on local government. Lower taxes, less spending, better schools. It's a record we can all be proud of. Call Gary Drzewiecki and tell him thanks. [7] This year, Wisconsin homeowners received their property taxes cut by almost 17%. No thanks to Senator Alice Clausing. She voted against the largest property tax cut in Wisconsin history. Then Clausing voted against an additional 36 million dollars for schools - right in her own district. Alice Clausing. Liberal on Taxes . . . Wrong on education. Call Senator Clausing. Tell her to stop voting with those Madison liberals. Compl., Attach. 1-7. 5 No. 98-0596 injunction restraining IMC from broadcasting its advertisements. The circuit courts involved in the related suits swiftly did the same. IMC filed an emergency petition for a supervisory writ with the court of appeals. The court of appeals granted the writ in part and denied it in part, leaving the injunctions in place. ¶8 On March 14, 1997, the Board issued its regarding the legislators' administrative complaints. found that order The Board IMC had engaged in express advocacy and ordered IMC to comply with the provisions of Wis. Stat. ch. 11 by April 15, 1997. Specifically, the Board ordered IMC to file a campaign registration statement and a campaign finance report detailing all contributions made or received, and all disbursements made or obligations incurred, during 1996. ¶9 Board IMC refused to comply with the Board's order. responded by filing the present Circuit Court on June 26, 1997. action in Dane The County In its complaint, the Board alleged that IMC's advertisements had the "political purpose of expressly advocating" legislators. respondents defeat Therefore, (collectively, or the "WMC") re-election Board were of asserted, subject regulations under the campaign finance laws. the named the to four various The Board alleged that WMC failed to comply with the March 14, 1997, order4 and had 4 Like the circuit court, we are unable to discern from the allegations in the complaint which of the four respondents the Board deems responsible for failing to comply with its March 14, 1997, order. Although the complaint alleges that all respondents failed to comply with the order by filing the required reports, it also states somewhat inconsistently that its order was issued only against respondent IMC. See Compl. ¶¶61-65; Decision and Order at 6 n.3. 6 No. violated Wisconsin's campaign finance laws by: 98-0596 (1) failing to register in violation of Wis. Stat. § 11.05(1);5 (2) failing to file financial reports regarding contributions in violation of Wis. Stat. § 11.06(1)(a);6 (3) failing to file financial reports required by Wis. Stat. § 11.20(1) and (2);7 and (4) making contributions and/or disbursements for purposes unrelated to a 5 Wis. Stat. § 11.05(1) provides: Registration of political committees, groups and individuals. (1) COMMITTEES AND GROUPS. . . . [E]very committee other than a personal campaign committee . . . which makes or accepts contributions, incurs obligations or makes disbursements in a calendar year in an aggregate amount in excess of $25 shall file a statement with the appropriate filing officer giving the information required by sub. (3). . . . 6 Wis. Stat. § 11.06(1) states: Financial report information; application; funding procedure. (1) CONTENTS OF REPORT. . . . [E]ach registrant under s. 11.05 shall make full reports, upon a form prescribed by the board and signed by the appropriate individual under sub. (5), of all contributions received, contributions or disbursements made, and obligations incurred. Each report shall contain the following information . . . : (a) An itemized statement giving the date, full name and street address of each contributor who has made a contribution in excess of $20 . . . . 7 Wis. Stat. § 11.20 provides: Filing requirements. (1) All reports required by s. 11.06 which relate to activities which promote or oppose candidates for state office . . . shall be filed with the board. . . . (2) Preprimary and preelection reports under s. 11.06(1) shall be received by the appropriate filing officer no earlier than 14 days and no later than 8 days preceding the primary and the election. 7 No. referendum, in violation of Wis. Stat. § 11.38(1).8 sought per diem civil forfeitures as provided in 98-0596 The Board Wis. Stat. §§ 11.60 and 11.38(4), costs, and an injunction requiring WMC to comply with the applicable statutory provisions. ¶10 WMC moved to dismiss the Board's complaint for failure to state a claim upon which relief can be granted. On January 16, 1998, the Dane County Circuit Court, Judge Sarah B. O'Brien presiding, granted WMC's motion. court determined that the In a 29-page decision, the Board could adopt a definition of express advocacy other than the one set forth by the United States Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), as long as that definition met the requirements of the First and Fourteenth Constitution. Amendments to the United States According to the court, the standard for express advocacy urged by the Board was a case-by-case determination based on the five-factor test of Crawford v. Whittow, 123 Wis. 2d 174, 183, 366 N.W.2d 155 (Ct. App. 1985),9 and could not 8 Wis. Stat. § 11.38 provides: Contributions and disbursements by corporations and cooperatives. (1) (a) 1. No foreign or domestic corporation . . . may make any contribution or disbursement, directly or indirectly, either independently or through any political party, committee, group, candidate or individual for any purpose other than to promote or defeat a referendum . . . . 9 In Crawford v. Whittow, 123 Wis. 2d 174, 183, 366 N.W.2d 155 (Ct. App. 1985), the court of appeals adopted the Board's five-factor test for determining whether an act was for "political purposes" under Wis. Stat. § 11.01(16). The court stated that the following factors should be considered: "(1) the distributor's intentions as to political office; (2) the content of the materials; (3) the manner of distribution; (4) the pattern and frequency of distribution; and (5) the value of the distributed materials." Crawford, 123 Wis. 2d at 183. 8 No. 98-0596 fairly be applied to WMC because the Board had not previously published or formally adopted it. Further, the court reasoned, the Board's standard was unconstitutionally vague and was not sufficiently narrow to serve compelling governmental interests. Based on its conclusions, the court dismissed the Board's complaint with prejudice. II. ¶11 We apply a de novo standard when reviewing a circuit court's dismissal of a complaint for failure to state a claim. Hermann v. Town of Delavan, 215 Wis. 2d 370, 378, 572 N.W.2d 855 (1998); Watts v. Watts, 137 Wis. 2d 506, 512, 405 N.W.2d 305 (1987). In our review, we must accept as true all facts in the complaint and all reasonable inferences which may be drawn from them. Watts, 137 Wis. 2d at 512. 378. Dismissal is proper only See Hermann, 215 Wis. 2d at when it is clear that the plaintiff would not be entitled to relief under any facts which could be proved. Hermann, 215 Wis. 2d at 378; Watts, 137 Wis. 2d at 512; Crawford, 123 Wis. 2d at 178. ¶12 In its complaint, the Board alleges that WMC is subject to regulation because its ads had the "political purpose of expressly advocating featured legislators. making of a the defeat" or re-election of the Under Wis. Stat. § 11.01(16)(a)1, "[t]he communication which expressly advocates the election, defeat, recall or retention of a clearly identified candidate . . ." is an act for "political purposes." A payment made for "political purposes" may qualify as a "contribution" 9 No. 98-0596 under § 11.01(6)(a)1 or a "disbursement" under § 11.01(7)(a)1.10 It is the respondents contributions and/or disbursements that the Board asserts triggered the sections of ch. 11 allegedly violated by WMC. Accordingly, whether the Board's complaint has stated a claim upon which relief can be granted would seem to depend upon whether WMC's advertisements constitute express advocacy as provided in § 11.01(16)(a)1. ¶13 Statutory interpretation is a question of law which this court reviews de novo, although we are benefited in this case by Menard, the analysis Inc., 224 of the Wis. 2d circuit 174, 184, court. 589 See N.W.2d Peters 395 v. (1999); Forest County v. Goode, 219 Wis. 2d 655, 663, 579 N.W.2d 715 (1998). The main goal of statutory determine the legislature s intent. interpretation is to Goode, 219 Wis. 2d at 663; UFE Inc. v. LIRC, 201 Wis. 2d 274, 281, 548 N.W.2d 57 (1996). Our first step is to examine the plain language of the statute. Peters, 224 Wis. 2d at 184; Goode, 219 Wis. 2d at 663. language is susceptible to only meaning and our analysis ends. 201 Wis. 2d at 281-82. one meaning, we If the adopt that Goode, 219 Wis. 2d at 663; UFE, If, on the other hand, reasonable minds could interpret the statutory language to mean more than one thing, the statute is ambiguous and we look to other sources to 10 Disbursement is defined by Wis. Stat. § 11.01(7)(a)1 to mean [a] purchase, payment, distribution, loan, advance, deposit or gift of money or anything of value . . . made for political purposes. Similarly, § 11.01(6)(a)1 defines a contribution as [a] gift, subscription, loan, advance, or deposit of money or any thing of value . . . made for political purposes . . . . Section 11.01(6)(a)4 states that [a] transfer of funds between candidates, committees, individuals or groups subject to a filing requirement under this chapter is also a contribution. 10 No. decipher the legislature's intended meaning. 98-0596 Peters, 224 Wis. 2d at 184-85. ¶14 Express advocacy is not defined in the Wisconsin Statutes. The meaning of the term has not been clarified in any published Wisconsin case, and the definition of express advocacy.11 Board has not published a We turn, therefore, to other sources for aid in interpreting the term. ¶15 The express advocacy language was added to Wis. Stat. ch. 11 after the United States Supreme Court handed down its 11 The Board's corresponding administrative regulation, like Wis. Stat. § 11.01(16)(a)1, refers to express advocacy without defining it. Wis. Admin. Code ElBd § 1.28 (Apr., 1998) provides in pertinent part: (1) Definitions. As used in this rule: . . . (b) "Contributions for political purposes" means contributions made to 1) a candidate, or 2) a political committee or 3) an individual who . . . makes disbursements for the purpose of expressly advocating the election or defeat of an identified candidate. (2) Individuals other than candidates and committees other than political committees are subject to the applicable disclosure-related and recordkeeping-related requirements of ch. 11, Stats., only when they: (a) Make contributions for political purposes, or . . . (c) Make expenditures for expressly advocating the election identified candidate. 11 the purpose or defeat of of an No. 98-0596 decision in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).12 See § 27, discussed ch. the 328, Laws of 1979. constitutionality of In several Buckley, the provisions Federal Election Campaign Act of 1971 ("FECA").13 Court of the Buckley, 424 U.S. at 6. The Court emphasized that protection of political speech at lies the heart of the First Amendment, stating, "Discussion of public issues and debate on the qualifications of candidates are integral to the operation government established by our Constitution. of the system of The First Amendment affords the broadest protection to such political expression. . . ."14 Buckley, 424 U.S. at 14. 12 Similarly, Wis. Admin. Code ElBd § 1.28 (Apr., 1998) was created by an emergency rule promulgated after Buckley. See Wis. Admin. Code ElBd § 1.28 (Jan., 1977). See also 65 Op. Att'y Gen. 145, 152, 154 (1976) (advising the Board to enact emergency rules adopting a narrow interpretation, consistent with Buckley, of the political activity regulated by certain sections of Wis. Stat. ch. 11). 13 The Court in Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) actually considered the FECA as amended in 1974. See Buckley, 424 U.S. at 6 n.1. The relevant portions of the FECA See are set forth in the Appendix to the Buckley opinion. Buckley, 424 U.S. at 144-235. 14 The First Amendment provides, "Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble." U.S. Const. amend. I. The First Amendment applies to the states through the Fourteenth Amendment. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 336 n.1 (1995). Free speech is also guaranteed by Art. I, § 3 of the Wisconsin Constitution, which provides, "Every person may freely speak, write and publish his sentiments on all subjects . . . and no laws shall be passed to restrain or abridge the liberty of speech or of the press." Art. I, § 4 of the Wisconsin Constitution addresses free association: "The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged." 12 No. ¶16 The Court explained in Buckley that 98-0596 the First Amendment right of association is closely related to the right of free speech. of both public controversial (1958)). and private ones, association." together Buckley, 424 U.S. at 15. is points "[E]ffective advocacy of undeniably view, particularly enhanced by group Id. (quoting NAACP v. Alabama, 357 U.S. 449, 460 The right to associate includes the right to band for beliefs. the See Conservative purposes id. at Political of 15, advocating 22. Action See political also Committee, 470 FEC ideas v. U.S. or National 480, 494 (1985) [hereinafter NCPAC]. ¶17 Based on these principles, the Court held in Buckley that it could avoid invalidating two provisions of the FECA, the expenditure limit in § 608(e)(1)15 and the disclosure requirements of § 434(e),16 on grounds of vagueness only if it limited their reach to funds paid for political communications that constituted express advocacy. Id. at 44, 80. More precisely, the Buckley court held that §§ 434(e) and 608(e)(1) could only be constitutionally applied to regulate payments "for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office." Id. at 44. In discussing § 608(e)(1), the Court observed: 15 Section 608(e)(1) limited expenditures "relative to a clearly identified candidate" to $1,000 per year. Buckley, 424 U.S. at 39 (quoting § 608(e)(1)). 16 Section 434(e) required an individual or group (other than a political committee or candidate) that made more than $100 in contributions or expenditures in one year "'for the purpose of . . . influencing' the nomination or election of candidates for federal office" to file a statement disclosing the amount contributed or spent. Id. at 77 (quoting § 434(e)). 13 No. 98-0596 [T]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Id. at 42. Therefore, to clearly mark the boundary between permissible and impermissible speech, id. at 41, the scope of political activity regulated by § 608(e)(1) must be limited to communications that include explicit words of election or defeat of a candidate, the Court held. ¶18 advocacy of Id. at 43. Later in the opinion, the Court determined that the § 434(e) disclosure requirement "shares the same potential for encompassing both issue discussion and advocacy of a political result" as the expenditure limit in § 608(e)(1). Id. at 79. The Court explained that "compelled disclosure, in itself, can seriously infringe on privacy of guaranteed by the First Amendment." association Id. at 64. and belief Accordingly, the Court stated: To insure that the reach of § 434(e) is not impermissibly broad, we construe "expenditure" for purposes of that section in the same way we construed the terms of § 608(e)to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate. This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate. . . . As narrowed, § 434(e), like § 608(e)(1), does not reach all partisan discussion for it only requires disclosure of these expenditures that expressly advocate a particular election result. Id. at 80 (footnote omitted). 14 No. ¶19 98-0596 In footnotes, the Court elaborated on the meaning of its construction of §§ 434(e) and 608(e)(1) as applying only to speech which "expressly advocate[s] the election or defeat of a clearly identified candidate." Id. In footnote 52, the Court stated that such a construction "would restrict the application of § 608(e)(1) to communications containing express words of advocacy of election or defeat, such as 'vote for,' 'elect,' 'support,' 'cast your ballot for,' 'Smith for Congress,' 'vote against,' 'defeat,' 'reject.'" discussion of § 434(e), the footnote 52. ¶20 the express Court Id. at 44 n.52. advocacy included a standard footnote Following its as applied referring back to to See id. at 80 n.108. Although the United States Supreme Court has cited Buckley in several cases, our research discloses only one in which the Court applied the Buckley express advocacy standard: FEC v. (1986) Massachusetts Citizens [hereinafter MCFL].17 for Life, Inc., Massachusetts 479 Citizens U.S. 238 for Life (MCFL) had distributed a newsletter entitled, "Special Edition," and stating in bold-faced type, "EVERYTHING YOU NEED TO KNOW TO VOTE PRO-LIFE," "VOTE PRO-LIFE," and "No pro-life candidate can win in November without your vote in September." 17 MCFL, 479 U.S. The United States Supreme Court recently considered the constitutionality of a FECA expenditures provision, but none of the opinions delivered by the fractured Court addressed the application of Buckley s express advocacy standard. See Colorado Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604 (1996). We note that the Court has granted certiorari but has not yet heard argument in a case in which the Eighth Circuit court of appeals held that Missouri s campaign contribution limits violate the First Amendment. See Shrink Mo. Gov t PAC v. Adams, 161 F.3d 519, 523 (8th Cir. 1998), cert. granted, 119 S. Ct. 901 (1999). 15 No. at 243 (emphasis in original). 98-0596 Also printed on the newsletter were the names and photographs of 13 candidates in the upcoming state and federal elections which had voting records consistent with MCFL's position on certain issues. Id. at 243-44. The newsletter contained a coupon listing the names of the "prolife" candidates, to be detached and taken to the polls by readers, as well as a disclaimer stating that "[t]his special election edition does particular candidate." ¶21 not represent an endorsement any Id. at 243. The issue in MCFL was whether, by distributing the newsletter, MCFL prohibits had violated corporations from § 441b using of the FECA, treasury which funds expenditures "in connection with" federal elections. 241. of for Id. at The Court determined that, under Buckley, § 441b would be overbroad unless the term "expenditure" in § 441b were construed as applying only to express advocacy. Id. at 248-49. Utilizing this narrowing construction, the Court held that MCFL was in violation of § 441b because its newsletter constituted express advocacy. Id. at 249-51. In reaching this holding, the Court interpreted Buckley as follows: Buckley adopted the "express advocacy" requirement to distinguish discussion of issues and candidates from more pointed exhortations to vote for particular persons. We therefore concluded in that case that a finding of "express advocacy" depended upon the use of language such as "vote for," "elect," "support," etc., Buckley, supra, at 44, n.52. Id. at 249. The Court then applied the Buckley standard to MCFL s newsletter: Just such Edition." an exhortation appears in the "Special The publication not only urges voters to 16 No. 98-0596 vote for "pro-life" candidates, but also identifies and provides photographs of specific candidates fitting that description. The Edition cannot be regarded as a mere discussion of public issues that by their nature raise the names of certain politicians. Rather, it provides in effect an explicit directive: vote for these (named) candidates. The fact that this message is marginally less direct than "Vote for Smith" does not change its essential nature. The Edition goes beyond issue discussion to express electoral advocacy. The disclaimer of endorsement cannot negate this fact. Id. The Court concluded that MCFL s newsletter express advocacy within the purview of § 441b. ¶22 constituted Id. at 249-50. As stated previously, Buckley and MCFL comprise the entire volume of cases in which the United States Supreme Court has applied the express advocacy standard. We do not read Buckley and MCFL as requiring that a communication contain any specific "magic words" in order to constitute express advocacy. The words listed in footnote 52 of Buckley are merely examples of words which undoubtedly constitute "express words of advocacy of election or defeat," as evidenced by the Court's use of the phrase "such as" immediately Buckley, 424 U.S. at 44 n.52. Court summarized footnote 52 preceding the list words. Consistent with Buckley, when the of Buckley in MCFL, introduced the words with the phrase "such as." at 249. of it again MCFL, 479 U.S. The Court in MCFL also suggested that the list of words in Buckley's footnote 52 was exemplary, not exhaustive, when it stated, "The fact that this message [in the newsletter] is marginally less direct than "Vote for Smith" does not change its essential nature." in footnote 52. ¶23 Id. "Vote for" was one of the phrases used Buckley, 424 U.S. at 44 n.52. Further, it would be absurd to hold that those particular "magic words" of advocacy which the Buckley Court 17 No. chose to mention in footnote 52 qualify as express 98-0596 advocacy while other, equally explicit words of advocacy do not. We can think of no reason to adopt an approach which would regulate an ad which said, "Defeat Smith," but not an ad which said, "Unseat Smith." See Buckley, 424 U.S. at 44 n.52. Consistent with the well-established rule that we should avoid absurd results when interpreting a statute, see Campenni v. Walrath, 180 Wis. 2d 548, 560, 509 N.W.2d 725 (1994), we hold that no particular "magic words" are necessary for a communication to constitute express advocacy. ¶24 it is In our view, Buckley stands for the proposition that unconstitutional to place reporting or disclosure requirements on communications which do not "expressly advocate the election or defeat Buckley, 424 U.S. at 80. of a clearly identified candidate." Any standard of express advocacy must be consistent with this principle in order to avoid invalidation on grounds of vagueness and/or overbreadth. at 248-49; Buckley, 424 U.S. at 44, 80. for a political express explicit advocacy language communication under or Buckley advocating the We are satisfied that advertisement and to constitute MCFL, it must election or defeat candidate who is clearly identified.18 18 See MCFL, 479 U.S. contain of a See MCFL, 479 U.S. at It has been argued that language used by the United States Supreme Court in MCFL suggests that contextual factors are relevant in identifying express advocacy. In MCFL, the Court stated that a newsletter was express advocacy because it "in effect" instructed readers to vote for certain candidates. MCFL, 479 U.S. at 249. In addition, the Court commented that the "essential nature" of the language is not changed even though it "is marginally less direct than 'Vote for Smith.'" Id. 18 No. 98-0596 249-50; Buckley, 424 U.S. at 43, 44 & n.52, 80 & n.108. The explicit terms used need not have been chosen from a specific list of "magic words." ¶25 As stated previously, statute, or regulation there clarifying is the no Wisconsin meaning of the express advocacy as used in Wis. Stat. § 11.01(16)(a)1. case, term Buckley and MCFL constitute the only authority which binds Wisconsin courts on the subject.19 It follows, then, that if WMC's advertisements contained explicit words "advocating the election or defeat of a clearly identified candidate," the ads would be express advocacy subject to ch. 11 regulation, pursuant to the rule of Buckley and MCFL. ¶26 However, the Board does not advertisements include any "magic words. assert that WMC's Likewise, the Board The FEC made this argument in Maine Right to Life Committee v. FEC and the court in that case rejected it. See Maine Right to Life Comm. v. FEC, 914 F. Supp. 8, 11 n.2 (D. Me. 1996), aff d per curiam, 98 F.3d 1 (1st Cir. 1996), cert. denied, 118 S. Ct. 52 (1997). The court recognized that the presence of express terms of advocacy in MCFL s newsletter, such as vote for, undermined the contention that MCFL loosened the Buckley requirement. Id. The Court in MCFL did not discuss any particular contextual factors in holding that the newsletter was express advocacy. See MCFL, 479 U.S. at 249-50. Also of significance is the Court s indication in another case that timing the political advocacy of a no vote on a controversial referendum to occur in the heat of the vote only strengthens the protection afforded by the First Amendment to the advocacy. McIntyre, 514 U.S. at 347. 19 On federal questions, this court is bound only by the decisions of the United States Supreme Court. Thompson v. Village of Hales Corners, 115 Wis. 2d 289, 307, 340 N.W.2d 704 (1983) (citing United States ex rel. Lawrence v. Woods, 432 F.2d 1072, 1075-76 (7th Cir. 1970)). The value of the opinions of federal courts of appeals and district courts is limited to their persuasiveness. See id. 19 No. does not point to any advertisements which advocate election the candidate.20 specific might words qualify or defeat as or of phrases explicit a 98-0596 in the words clearly which identified To get around this, the Board urges us to find that WMC's advertisements are express advocacy based upon the context in which they were broadcast. The Board argues that we should evaluate case-by-case communications on communication express that a "unambiguously it is advocacy whenever related particular . . . candidate." to basis, its labeling context the a suggests campaign of Buckley, 424 U.S. at 80. a Among the factors the Board contends that we should consider are the proximity underlying in time of the communication intent of the communication, communication, the audience, and the to an the election, effect proximity of of the the the geographical area in which the communication is disseminated to the voting district of the featured candidate.21 20 Unlike the newsletter in MCFL, the advertisements in this case contain no explicit references to an election, no express language suggesting that viewers or listeners should vote in a particular way, and no wording identifying the featured incumbent legislators as candidates in the November election. See MCFL, 479 U.S. at 243. We point out this distinction only for purposes of clarifying the basis of the Board's argument. For the reasons made clear in the text, we do not find it necessary to determine whether WMC's advertisements qualify as express advocacy. 21 Despite the position to the contrary taken by the dissent, it appears to us to be beyond dispute that the central premise of the Board's position was that this court should adopt a context-based definition of express advocacy. One need only glance at the following examples from the Board's briefs in order to grasp the Board's clear argument in favor of a standard based on context: Not only must the analysis include the character and unambiguity of the words, but the context within which 20 No. 98-0596 the words are spoken. Justice Holmes noted in his opinion in Schenck v. United States, 249 U.S. 47 (1919), that "the character of every act depends upon the circumstances in which it is done." Schenck, 249 U.S. at 52. In Schenck the court did not ignore the fact that "in many places and in ordinary times" the defendants' circulating pamphlets which argued against conscription in the United States Army during the first World War and urged the readers to assert their rights under the Constitution and told them "[y]ou must do your share to maintain, support and uphold the rights of the people of this country" would have been within their constitutional rights. Id. The court's earlier decisions on First Amendment speech issues, and the Buckley decision itself, affirm what every speaker or listener knows: the meaning of speech cannot be determined without at least considering its immediate context, e.g., whether the theater was empty or crowded when the speaker yelled "fire." See Schenck, 249 U.S. at 52. Board's Br. at 15-16. The state submits, however, that it is permissible in this case, as with other First Amendment standards, to look at the context in which the speech was made. Looking at context does not mean changing the standard to a subjective standard or inappropriately examining intentions or motives as respondents suggest. (Respondents' brief at 23-24.) Context is time, place and audience and is often relevant in examining First Amendment speech. Board's Reply at 7. This court should consider context by examining the effect particular speech has on its audience given the particular time and place. Consideration of the context of speech is acceptable in other First Amendment venues. The doctrines of subversive speech, "fighting words[,"] libel, and speech in the workplace and in public fora illustrate that when and where speech takes place can determine its legal significance. In these instances, context is one of the crucial factors making these kinds of speech regulatable [sic]. First Amendment doctrine has long recognized that words take part of their 21 No. 98-0596 meaning and effect from the environment in which they are spoken. See Furgatch, 807 F.2d at 863. While the Furgatch court concluded that the weight given to the context of speech may be lessened when the constitutional standard is express advocacy, it recognized that context is relevant to a determination of express advocacy. Board's Reply at 8. At oral argument, the Board shifted its position slightly, but continued to argue for a context-oriented standard of express advocacy: There is nothing in the U.S. Supreme Court that says express advocacy is the opposite of implied advocacy or express advocacy is the opposite of an issue ad. What we have to do is read these ads as a whole, look at their essential nature, look at their entire content, and decide whether they unambiguously relate to the campaign of a particular candidate. . . . I don't think there's any authority that prevents us from looking at context; in fact, on the contrary, there's a long line of U.S. Supreme Court cases that suggests what every school child knows: whether you say "fire" in an empty theater or a crowded theater makes a significant difference. If we make a very limited reference to context in this case, and I submit time, place, and audience is the context, then it clearly affirms ourourthe clear answer that these are express advocacy ads. The ads were aired shortly before the election, they were aired in a geographical area in which each of the targeted candidates were running and they were aired to an audience of voters who were about to vote for those candidates. . . . I think in determining whether an ad is unambiguously related to a campaign, a court may make a limited consideration of time, place and audience. I am not suggesting to you that context is a replacement for the Buckley standard . . . . I would say the standard is what the Buckley court stated, that it is spending that is unambiguously related to the campaign of a particular federal candidate. I would then go on to say that in determiningmaking that determination, certain factors 22 No. ¶27 It determining may well whether be appropriate to a communication consider 98-0596 context constitutes in express advocacy. It should be remembered that Buckley developed its definition of express federal statute. advocacy while interpreting a specific In FEC v. Furgatch, 807 F.2d 857, 863 (9th Cir. can be considered, and I would draw from the language of the MCFL case and the Furgatch decision. . . . During oral argument in this court, Justice Bradley, the author of the dissent, characterized the Board's argument as one requiring a review of the context of each individual ad. Justice Bradley commented to counsel for the Board: There's something to be said about bright-line tests if we're dealing with large numbervolumes. People have to have notice of what's expected in order to proceed. Your proposal talks about, "Let's look at the essential nature of each individual ad and review it in the context." Well, you know, that's one of those things that, after the fact, you might know if you've made ahave a problem earlier on. What kind of definition or contour are you proposing that is akin to a bright line so that people can have notice of what's expected and not expected, rather than, "Let's take a look at each one individually?" (Emphasis added). Counsel for the Board replied, "I understand your question and much is to be said for a bright-line test in that it's more convenientit's simpler, it's easier to follow. I submit to you that there are other constitutional standards such as obscenity and minimum contacts that are not precisely defined, that we are often in constitutional law asking courts to interpret, we are asking courts to exercise judgment, and I think that is precisely why the U.S. Supreme Court put the examples in a footnote . . . ." We also note that the circuit court determined that the Board was attempting to apply the five-factor Crawford test for "political purpose" in this case. The Board claims in its brief in this court that it never argued that the five Crawford criteria should be used in determining whether the ads were express advocacy. In any event, we are thoroughly satisfied that in this court, the Board argued in favor of a context-based standard unrelated to the five-factor test of Crawford. See Crawford, 123 Wis. 2d at 183. 23 No. 1987), cert. denied, 484 U.S. 850 (1987), the 98-0596 Ninth Circuit adopted a broader definition of express advocacy when it held that context is relevant in determining communication is express advocacy. whether a political The Furgatch court took the following approach, which presents an attractive alternative: We conclude that speech need not include any of the words listed in Buckley to be express advocacy under the Act, but it must, when read as a whole, and with limited reference to external events, be susceptible to no other reasonable interpretation but as an exhortation to vote for or against a specific candidate. Furgatch, 807 F.2d at 864. The court explained that under this standard, the message of the speech must be "unmistakable and unambiguous, suggestive of only one plausible meaning," it must "present[] a clear plea for action," and it "must be clear what action is advocated." Id. Context remains an ancillary consideration, the court stated, one peripheral to the words themselves. Id. at 863. The court specifically relied on the timing of an advertisement (within one week of the election) in concluding that the ad was express advocacy. ¶28 Id. at 865. It should be noted, however, that Furgatch makes no mention of the United States Supreme Court s decision in MCFL, even though MCFL preceded Furgatch by nearly one month. See FEC v. Christian Action Network, Inc., 110 F.3d 1049, 1053 n.4 (4th Cir. 1997). It is also significant that at least two courts have held that an FEC regulation adopting the context-based rule 24 No. 98-0596 of Furgatch is an invalid attempt to regulate issue advocacy.22 See Right to Life of Dutchess County, Inc. v. FEC, 6 F. Supp. 2d 248, 249-50, 253-54 (S.D.N.Y. 1998); Maine Right to Life Comm. v. FEC, 914 F. Supp. 13 (D. Me. 1996), aff d per curiam, 98 F.3d 1 (1st Cir. 1996), cert. denied, 118 S. Ct. 52 (1997). Other courts have rejected similar attempts to broaden the definition of express advocacy. See, e.g., Faucher v. FEC, 928 F.2d 468, 471-72 (1st Cir. 1991), cert. denied 502 U.S. 820 (1991); FEC v. Central Long Island Tax Reform Immediately Comm., 616 F.2d 45, 53 (2nd Cir. 1980)(en banc); FEC v. Christian Action Network, 894 F. Supp. 946, 958 (W.D. Va. 1995), aff d per curiam, 92 F.3d 1178 (4th Cir. 1996). ¶29 Regardless of whether it might be permissible to consider context in defining express advocacy, we conclude, for the reasons before which broadcasting follow, its that WMC had advertisements insufficient that a warning context-based standard could be used to determine that the ads were express advocacy which would subject WMC to regulation under the Wis. Stat. ch. 11 provisions at issue. ¶30 "Because we assume that [persons are] free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to 22 Courts have deemed it "obvious" that 11 C.F.R. § 100.22(b) "comes directly from" the language of FEC v. Furgatch, 807 F.2d 857, 863 (9th Cir. 1987), cert. denied, 484 U.S. 850 (1987). Maine Right to Life Comm., 914 F. Supp. at 11. See also Kansans for Life, Inc. v. Gaede, 38 F. Supp. 2d 928, 937 (D. Kan. 1999). The FEC regulations provide that a communication is express advocacy if it either meets the Furgatch-based test of § 100.22(b) or contains explicit language of advocacy. See 11 C.F.R. § 100.22 (1999). 25 No. know what is accordingly." (1972). prohibited, that he [or she] may act Grayned v. City of Rockford, 408 U.S. 104, 108 Such notice is a basic requirement of due process. Grayned, 408 U.S. at 108. implicated imprecise so 98-0596 by laws which When First Amendment interests are may standards "may not result only in 'trap criminal the penalties,23 innocent by not providing fair warning' or foster 'arbitrary and discriminatory application' but also operate to inhibit protected expression by inducing 'citizens to steer far wider of the unlawful zone . . . than if marked.'" the boundaries (1964); "Because the forbidden areas were clearly Buckley, 424 U.S. at 41 n.48 (quoting Grayned, 408 U.S. at 108-109). 372 of See also Baggett v. Bullitt, 377 U.S. 360, Speiser First v. Amendment Randall, freedoms 357 U.S. need 513, 526 breathing (1958). space to survive, government may regulate in the area only with narrow specificity." Buckley, 424 U.S. at 41 n.48 (quoting NAACP v. Button, 371 U.S. 415, 433 (1963)). ¶31 The Board s attempt to apply a context-based standard to the ads involved in this case amounts to an after-the-fact effort to create a standard of express advocacy which is broader 23 Criminal penalties may result from intentional violations of Wis. Stat. ch. 11, although the Board did not opt to seek such penalties in this case. See Wis. Stat. § 11.61(1). 26 No. 98-0596 than the standard existing in Wisconsin when WMC ran its ads.24 Unlike the Board, the interpretation of the FEC has statutory promulgated term and express published advocacy, its which includes a context-based test, as an administrative rule.25 By 24 We find it interesting that the Board's Executive Director did not apply a context-based standard in evaluating transcripts of WMC's ads prior to their broadcast. In response to a request by counsel for IMC, the Executive Director, in an October 2, 1996, letter, stated unequivocally, "It is the opinion of the Elections Board staff that these communications are not subject to regulation under Wisconsin's campaign disclosure law." Respondents App. at 50; R. 15 at 4. The Executive Director s opinion followed a detailed analysis of the wording of the advertisements, with no consideration of contextoriented factors. The letter only briefly mentioned that "[t]he timing of the broadcast of the ads, in the midst of a political campaign, could raise the suggestion that these are essentially candidate advocacy ads." Id. The circuit court apparently opted to treat WMC's motion as a straight motion to dismiss rather than a motion for summary judgment, and therefore, did not consider this letter. The letter was referred to by counsel in briefs and oral argument in this court. We mention it only as background material. 25 The FEC rule provides: § 100.22 Expressly advocating (2 U.S.C. 431 (17)). Expressly advocating means any communication that-(a) Uses phrases such as "vote for the President," "re-elect your Congressman," "support the Democratic nominee," "cast your ballot for the Republican challenger for U.S. Senate in Georgia," "Smith for Congress," "Bill McKay in '94," "vote Pro-Life" or "vote Pro-Choice" accompanied by a listing of clearly identified candidates described as Pro-Life or ProChoice, "vote against Old Hickory," "defeat" accompanied by a picture of one or more candidate(s), "reject the incumbent," or communications of campaign slogan(s) or individual word(s), which in context can have no other reasonable meaning than to urge the election or defeat of one or more clearly identified candidate(s), such as posters, bumper stickers, advertisements, etc. which say "Nixon's the One," "Carter '76," "Reagan/Bush" or "Mondale!"; or 27 No. creating and attempting to apply its new, 98-0596 context-oriented interpretation of the statutory term express advocacy, the Board has, in effect, engaged in retroactive rule-making. See Wis. Stat. §§ 227.01(13), 227.10(1); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, substantial 208-09 (1988) justification for (stating, "Even retroactive where rulemaking some is presented, courts should be reluctant to find such authority absent an express statutory grant"). Co. v. DMV, 72 Wis. 2d 223, See also Schoolway Transp. 236-37, 240 N.W.2d 403 (1976); Frankenthal v. Wisconsin R.E. Brokers' Bd., 3 Wis. 2d 249, 253- (b) When taken as a whole and with limited reference to external events, such as the proximity to the election, could only be interpreted by a reasonable person as containing advocacy of the election or defeat of one or more clearly identified candidate(s) because-(1) The electoral portion of the communication is unmistakable, unambiguous, and suggestive of only one meaning; and (2) Reasonable minds could not differ as to whether it encourages actions to elect or defeat one or more clearly identified candidate(s) or encourages some other kind of action. 11 C.F.R. § 100.22. The Wisconsin Elections Board has never promulgated any comparable rule setting forth its interpretation of "express advocacy" as that term is used in the Wisconsin Statutes. As stated in footnote 10 of this opinion, Wis. Admin. Code ElBd § 1.28 (Apr., 1998), refers to express advocacy but does not attempt, in any way, to define it. As we noted earlier (see footnote 22), the language of 11 C.F.R. § 100.22(b) comes from the language of FEC v. Furgatch, 807 F.2d 857, 863 (9th Cir. 1987), cert. denied, 484 U.S. 850 (1987). Subsection (a) of that same regulation is clearly from Buckley. See, Buckley, 424 U.S. at 80 n.52. 28 No. 98-0596 54, 88 N.W.2d 352 (1958), on motion for reh'g, 3 Wis. 2d 257a, 257b-257c, 89 N.W.2d 825 (1958). We agree with the circuit court that it would be "profoundly unfair to apply a previously unarticulated test, retroactively, to these defendants." Decision and Order at 25. ¶32 The United States Supreme Court has held that a deprivation of the due process right of fair warning can occur not only from vague statutory language, but also from unforeseeable and retroactive interpretation of that statutory language. See Bouie v. City of Columbia, 378 U.S. 347, 352, 355 (1964). The Court indicated that a due process violation resulting from retroactive interpretation of statutory language is actually worse than a vague statute because it "lulls the potential defendant into a false sense of security, giving him no reason even to suspect" that he might be subject to the statutory prohibition. ¶33 Id. at 352. Further, we decline the Board's invitation to craft a new standard of express advocacy for the state of Wisconsin. The creation of such a standard is properly the role of the 29 No. legislature and the Board, not this court.26 98-0596 See Wagner Mobil, Inc. v. City of Madison, 190 Wis. 2d 585, 594 n.4, 527 N.W.2d 301 (1995)(recognizing the well-established principle that the Wisconsin Constitution legislative and § 5.05(1)(f). depends upon requires judicial the powers. ) separation See also role in Wis. the Stat. The level of regulation desirable in this area public policy considerations more explored in a forum other than this court. our of areas peppered with appropriately We have described political perceptions and emotionally laden views, as one restricted to interpreting the scope of constitutional requirements. Kukor v. Grover, 148 Wis. 2d 469, 504-505, 436 N.W.2d 568 (1989). ¶34 WMC, when We conclude that under the circumstances of this case, it broadcast its advertisements, had insufficient warning that the ads could qualify as express advocacy under Wisconsin's campaign finance law. The Board s after-the-fact attempt to apply a context-oriented standard of express advocacy 26 The dissent argues that Buckley obligates this court to supply a definition for the term "express advocacy" in Wis. Stat. § 11.01(16)(a)1 to save the statute from invalidation on grounds of vagueness. This argument misinterprets the question before us. We are not faced with the question of whether the language concerning express advocacy in Wis. Stat. § 11.01(16)(a)1 and Wis. Admin. Code ElBd § 1.28 (Apr., 1998) is unconstitutionally vague. These statutory and code sections parrot the language used in Buckley. As we have already explained, express advocacy has been defined in both Buckley and MCFL. See MCFL, 479 U.S. at 249; Buckley, 424 U.S. at 44 & n.52, 80 & n.108. In contrast, the problem in this case is that the Board is attempting to retrospectively apply to the respondents a context-oriented standard of express advocacy which has heretofore been unknown in Wisconsin law. We are under no obligation to adopt such a standard, where the lack of fair warning and, in effect, retroactive rulemaking amount to a violation of due process, and are determinative of the issue presented. 30 No. must fail, since, in effect, it was an unfair 98-0596 attempt27 at retroactive rule-making, without any express statutory grant of authority, and thus, a violation of due process. Because this conclusion prevents the Board from prevailing in this action under any factual conditions, we affirm the circuit that the Board court's dismissal of the Board's complaint. III. ¶35 Based on our conclusion may not regulate WMC under the campaign finance laws in ch. 11 on the basis of standard the of retrospective express application advocacy, we dismissal of the Board's complaint. affirm of a context-based the circuit court's We stress that this holding places no restraints on the ability of the legislature and the Board to define further a constitutional standard of express advocacy to be prospectively applied. so, as we are well aware of the We encourage them to do types of compelling state interests which may justify some very limited restrictions on First and Fourteenth Amendment rights. See Gard v. State Elections Bd., 156 Wis. 2d 28, 36, 51-52, 65, 456 N.W.2d 809 (1990), cert. denied, 498 U.S. 982 (1990) (upholding a contribution limit which was found by this court to be narrowly tailored to serve the compelling state interest in preventing actual or apparent corruption of the political process). See also Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 65860 (1990); NCPAC, 470 U.S. at 496-97; FEC v. National Right to 27 "[T]he concern of due process is fundamental fairness." State ex rel. Lyons v. De Valk, 47 Wis. 2d 200, 205, 177 N.W.2d 106 (1970). See In re D.H., 76 Wis. 2d 286, 296-97, 251 N.W.2d 196 (1977)(quoting McKeiver v. Pennsylvania, 403 U.S. 528, 543 (1971)); U.S. Const. amend. XIV; Wis. Const. art. I, § 1. 31 No. 98-0596 Work Comm., 459 U.S. 197, 207-208 (1982); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 788-89 (1978). with this opinion, we note that any definition Consistent of express advocacy must comport with the requirements of Buckley and MCFL and may encompass more than the specific list of "magic words" in Buckley footnote communications that 52, but include must, however, explicit words be "limited to of advocacy of election or defeat of a candidate."28 By the Court. The judgment and order of the circuit court is affirmed. ¶36 JON P. WILCOX, J., did not participate. 28 Buckley, 424 U.S. at 43. The United States Supreme Court, as noted previously, required that the candidate must be "a clearly identified" one. Id. at 80. In regard to the requirement of explicit language, we are mindful that words in one context may take on different meaning in another. We recognize that a number of courts have rejected a context-based approach, finding that it did not comport with the holdings in Buckley and MCFL. (See footnote 18 and paragraph 28 herein.) 32 No. 33 98-0596 No. 98-0596.wab ¶37 WILLIAM A. BABLITCH, J. (concurring). Nobody, including the Elections Board, is attempting to stop WMC from saying anything they want to say during the election season. What is at stake here is whether the public has a right to know who is paying for whatever it is WMC wants to say during the election season. ¶38 The spin surrounding this case has been Elections Board is trying to stifle free speech. that the Not true. It s all about the public knowing who is saying what. ¶39 An democracy. informed electorate is essential to a healthy If people are told that a Ford is a great car, it is important for people to know whether Consumer Reports or Ford is saying so. Similarly, if the electorate is being told that a candidate is a great friend of education, it is important for people to know whether the teachers union or Common Cause is saying so. The answer to Who paid? answers a lot of questions. ¶40 That is what is at stake here, and no amount of spin should be able to hide that fact. ¶41 Having said the above, I join the majority opinion. I agree that WMC should be dismissed from the case for lack of notice regarding what constitutes express advocacy. have preferred that a majority could have found its I would way to expressing a standard by declaring that, in the future, ads such as these constitute express advocacy. that result. 1 I would have joined No. 98-0596.wab ¶42 better Nevertheless, than no reasoned and express advocacy. standard? ¶43 vote. half loaf at loaf a all. The persuasive case Does For me, yes. as the in instance is dissent to this presents a why dissent these ads express well constitute an Are there the votes for it? far acceptable No. If I joined the dissent, the result would be a 3-3 Guidance guidance. is needed and a tie vote does not provide A tie vote results in no opinion and therefore no standard or guidance from this court on the very issue that needs resolution. Because there is at present no appellate decision on the issue, we would have to remand to the court of appeals for their decision, then consider yet another appeal. Meanwhile, at least one or more election cycles would come and go. Wisconsin would continue to have no standard as to what constitutes Elections express advocacy. Board, as well as The potential legislature advocates such and as the the Wisconsin Manufacturers Association, would be left completely in the dark as to whether ads that do not contain any magic words can be regulated. Drafters of a standard would not know whether they should even consider a context based approach. ¶44 The majority opinion, despite dissent, does provide some needed guidance. 2 the words of the It does not provide No. 98-0596.wab all the guidance the dissent wants, but in this instance some guidance is better than none.29 ¶45 By my joining the majority, the legislature or the elections board is now free to craft a standard for express advocacy, knowing that at the least there is no requirement for magic words, and that the court alternative a context based approach. will consider as an I invite one or the other or both to craft a standard . . . posthaste. 29 I would have preferred a decision that more closely echoed the dissent in some respects, but that it is not to say that the majority opinion voices a decision with which I disagree. It is of utmost importance to provide guidance in this case, which the majority does effectively, and does correctly. That is why I join it. It does not go as far as I would prefer, but most judges have joined opinions that go a bit farther or less far than we would like. See Brown v. Board of Education, 347 U.S. 483 (1954). See also Daniel A. Farber, et al., Constitutional Law: Themes from the Constitution s Third Century 50-52 (1993); Leo Katcher, Earl Warren, A Political Biography (1967). Judicial decision-making necessarily involves a variety of choices. Would that the best choice be always clear, but it is not. Some choices may, at first blush, appear to be preferable, but, looked at it in the perspective of the whole, are not. That is what happened here. I compromised. Most appellate judges do. Sometimes the best choice, for a variety of reasons, is not one s first choice. Judicial opinions are filled with compromise, and we should not deny it. As Benjamin Cardozo said, judges do not stand aloof on chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do. 3 No. 98-0596.wab 4 No. 98-0596.dtp ¶46 DAVID T. PROSSER, J. (Concurring in part, dissenting The First Amendment is not what it used to be. in part). It is fashionable today to protect deviant speech30 and expressive conduct.31 But pure speech which discusses public issues and public officials is vulnerable to the impulse for government regulation. While I join that part of the court's decision dismissing the suit against the respondents, I dissent from much in the majority opinion. ¶47 Little is made of the fact that the respondents in this case went to the State Elections Board for guidance before broadcasting their ads. they received Thereafter, government several Majority op. at 28, n.24. acquiescence circuit courts did enjoined they the Only after go forward. broadcast these pure speech ads while the ads were on the air. of Then the Elections Board reversed its position and tried to compel the filing of various reports. ¶48 The present case is a new episode in this saga. The majority opinion appears to encourage government rule-making to extend the boundaries of "express advocacy." Rule-makers are encouraged to march through the quicksand of "context" en route to a more correct and perfect political order. 30 The dissent See State v. Zarnke, 224 Wis. 2d 116, 589 N.W.2d 370 (1999). 31 See Lounge Management v. Town of Trenton, 219 Wis. 2d 13, 580 N.W.2d 156 (1998); State v. Janssen, 219 Wis. 2d 362, 580 N.W.2d 260 (1998). 1 No. 98-0596.dtp can't wait for others to act; it wants the court to impose its own rules here and now. Both opinions soar into pronouncements about speech regulation after a clear majority of this court decided that we have no viable case before us. ¶49 Wisconsin Statutes regulating must be very narrowly construed. political expression 65 O.A.G. 145 (1976). If the term "express advocacy" encompasses more than the magic words enumerated in footnote 52 of Buckley v. Valeo, 424 U.S. 1, 44 (1976) (per curiam), the additional words and phrases should be explicitly disclosed. Those words and phrases must advocate the election or defeat of a clearly identified candidate by urging citizens how to vote or directing them to take other specific action unambiguously related to an election. ¶50 The First Amendment is inconsistent with rules that leave people in doubt whether their expression is regulated. It does not countenance enforcement against speech on a case by case basis where government regulators are permitted to draw inferences from circumstances or guess about people's motives. ¶51 It is probably ill-advised to make any comment about "express advocacy" in this case because it really amounts to an advisory opinion. 2 No. 98-0596.awb ¶52 ANN WALSH BRADLEY, J. cannot have it both ways: at the same time (Dissenting). The majority it cannot both uphold the law while decline to enforce it. Either it must acknowledge and apply the standards already established by the only two United States Supreme Court cases that have addressed express advocacy or, if that standard is unclear, it must do the business of a court and articulate a constitutional standard. Because I believe that it should do the former, and in the end it dodges the issue accomplishing neither, I respectfully dissent. ¶53 At the outset I want to note my agreement with the majority. Like the majority, I agree that no particular magic words are necessary for a communication to constitute express advocacy. the Majority op. at 18. contextual setting may Like the majority, I agree that assist whether an ad is express advocacy. in the consideration Id. at 2, 21-22. of Like the majority, I agree that Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam), and FEC v. Massachusetts Citizens for Life, Inc. (MCFL), 479 U.S. 238 (1986), constitute the only authority which binds Wisconsin courts on the issue. majority and acknowledge I and part apply company, the Majority op. at 20. however, already when it established The declines to definition of express advocacy. I. ¶54 In dodging the issue and relegating the task of defining express advocacy to the legislature or Elections Board, 1 No. 98-0596.awb the majority charts a solitary course. only court in administrative the nation agency to that take definition to express advocacy. It appears to be the requires the lead the legislature in adding or further Other courts have seen fit to tackle the express advocacy issue that the majority sweeps aside even though the statutes those courts were interpreting did not have a codified definition before them. See, e.g., Faucher v. FEC, 928 F.2d 468, 471 (1st Cir. 1991); FEC v. Furgatch, 807 F.2d 857, 859-60 (9th Cir. 1987); FEC v. Central Long Island Tax Reform Immediately Committee, 616 F.2d 45, 52-53 (2nd Cir. 1980) (en banc); FEC v. NOW, 713 F. Supp. 428, 433-34 (D.C. Cir. 1989). ¶55 of Examining the contours of the High Court s definition express inquiry. advocacy is quintessentially a constitutional Constitutional inquiries are ultimately the business of courts. Thus, I find it difficult to understand why the majority washes its hands of the matter. ¶56 The laudatory majority s comments of rule-making process. error the is Federal further illustrated Election Commission by its (FEC) It sees fit to hold up for high praise the FEC s adoption of a definition for express advocacy, while at the same time castigating the inaction of the Elections Board. Majority op. at 28-30. ¶57 However, the majority fails to recognize that the FEC rule is not the product of that agency s creative juices but is little more decisions: than permissible plagiarism of various court subsection (a) is taken from Buckley, 424 U.S. at 2 No. 98-0596.awb 43-44, 79-80; subsection (b) is taken from Furgatch, 807 F.2d at 864. See Maine Right to Life Committee, 914 F. Supp. at 11. Had these other courts traveled the path of the majority, the FEC rule that the majority finds so noteworthy would not have come into existence. The FEC rule followed court decisions and is based on those decisions. rules follow. The courts lead and the agency The majority errs when it reverses the equation and relegates its business to others. ¶58 If, however, the majority really believes that it could not apply the term express advocacy as found in Wis. Stat. § 11.01(16)(a)1, or in Wis. Admin. Code ElBd § 1.28 (Apr. 1998), because those provisions are too imprecise to give notice, then the majority should find that enforcement would be a denial of due process because they are unconstitutionally vague. Instead, the majority takes the tack of mischaracterizing the Board s position and based on that mischaracterization dismisses the complaint finding a denial of the due process right of fair warning. ¶59 The majority opinion s conclusion that the complaint should be dismissed is based on a faulty foundation. built on the premise that advocacy is context based. arrive at its the Board s definition of It is express It needs this premise in order to conclusion. Such a foundation, however, mischaracterizes the Board's position. ¶60 The majority ignores the repeated statements of the Board that its position adopts the Buckley definition as applied by MCFL and that only as a fall back position does the Board 3 No. 98-0596.awb address a context-based definition. Instead, the majority selects excerpts from the briefs and oral arguments that advance only the fall back position and then concludes based on those excerpts that the Board is attempting to apply an after-the-fact context-oriented standard. ¶61 This flies in Majority op. at 28. the face of the actual position Board advanced in its brief and at oral argument. the Board takes the position that the the In its brief definition of express advocacy has been established by the United States Supreme Court and no further definition required. or explanation of the standard is All that the court is required to do is apply that definition to the advertisements at issue in this case. State s br. at 9. ¶62 Similarly, at oral argument the Board repeatedly stated the position that sufficient definition of the standard could be found by applying the already Court s definition of express advocacy. established Supreme It argued that there was no need to apply a context-based definition. ¶63 must, and In arriving at its misguided conclusion, the majority does, ignore the following exchange and repeated statements of the Board setting forth its primary position. JUSTICE CROOKS: What's the test in your opinion? ATTORNEY FOR THE BOARD: The test that I'm suggesting is the Buckley test. The Buckley court sets forth express advocacy and it explains express advocacy by saying it's precisely related to the spending that is unambiguously related to the campaign of a particular candidate. 4 No. 98-0596.awb JUSTICE CROOKS: Doesn't it also advocates a particular election result? say expressly ATTORNEY FOR THE BOARD: Right and in discussing what express advocacy means, it says, "This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular candidate." That's at page 80. I think in determining whether an ad is unambiguously related to a campaign, a court may make a limited consideration of time, place and audience. I am not suggesting to you that context is a replacement for the Buckley standard. I'm not asking you to apply anything but the Buckley express advocacy standard. And the Board's attorney again stated: I submit that the content of these ads by themselves are express advocacy. It is not necessary for us to make limited reference to external events . . . . And repeated: I think, and I want to be very clear about this. These ads are express advocacy in and of themselves . . . . They are express advocacy regardless of when they are run . . . . And repeated: I don t think it s important to draw a line because I m not suggesting to you that context is the test . . . . And repeated: The Buckley standard prevails; the Buckley standard is express advocacy. We are not asking you to change that standard . . . . And repeated: [This court] has to use the language in Buckley and the language in MCFL and apply the express advocacy standard . . . . ¶64 Contrary to the repeated requests of the Board, the majority prefers to wait for the legislature or the Elections 5 No. 98-0596.awb Board to craft already been Court. If a definition done the of sufficiently majority express by finds the that advocacy. United That States definition has Supreme wanting for specificity, then it should not relegate the task of further definition to some other entity. business of this court. certainly should not Crafting a definition is the Whatever it chooses to do, it most attempt to cloak its inaction with a pervasive mischaracterization of the Elections Board s argument. II. ¶65 Unlike the majority, I would address the issue rather than dodge it. There is no need to invite the legislature or the Elections Board to craft a new standard because the standard already exists. We need not rely on a previously unarticulated test, majority op. create a at 30, standard of express or an after-the-fact advocacy, majority effort op. at to 28. Rather, I would acknowledge and apply the already established standards of express advocacy set forth in Buckley and MCFL. ¶66 The Buckley Court concluded that government could regulate the disclosure of contributors when the spending is used for communications that expressly advocate the election or defeat of a clearly identified candidate. 80. Buckley, 424 U.S. at The Court then precisely defined the express advocacy test as follows: This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular . . . candidate. . . . Id. at 80. 6 No. 98-0596.awb ¶67 Buckley, of course, was a facial challenge to the Federal Election Campaign Act (FECA) so the Court did not have occasion to apply its test for express advocacy at that time. However, in MCFL the Court was faced with, to date, its sole opportunity to do just that. ¶68 In MCFL, a group incorporated to foster respect for human life and to defend the right to life of all human beings, born and unborn produced a Special Edition of its newsletter setting forth everything you need to know to vote pro-life in the upcoming November elections. MCFL, 479 U.S. at 241, 243. Though sent its persons, usual MCFL newsletter printed over was 100,000 to approximately copies of the 3,000 Special Edition. ¶69 The newsletter listed the candidates for each federal and state office in every voting district in Massachusetts and indicated whether that candidate s corresponded with that of MCFL. position on Id. at 243. three issues While over 400 candidates were listed, only 13 had their picture included in the Special Edition and all 13 were candidates whose positions aligned entirely with that of MCFL on the issues listed. ¶70 The Court determined that the Special Edition was express advocacy. Buckley the In doing so, the Court first noted that in Court had concluded . . . that a finding of express advocacy depended upon the use of language such as vote for, elect, support, etc. The Court then stated that [j]ust such an exhortation. the Id. 7 MCFL, 479 U.S. at 249. Special Edition included No. 98-0596.awb The publication not only urges voters to vote for pro-life candidates, but also identifies and provides photographs of specific candidates fitting that description. The Edition cannot be regarded as a mere discussion of public issues that by their nature raise the names of certain politicians. Rather, it provides in effect an explicit directive: vote for these (named) candidates. The fact that this message is marginally less direct than Vote for Smith does not change its essential nature. Id. (emphasis added). ¶71 Were Buckley the Supreme Court s only statement on the matter, I might be more inclined to agree with those courts that have concluded that express advocacy requires the magic words appearing in the opinion or their synonyms. However, to read MCFL and to see how the High Court actually applied the Buckley test, I do not believe that the test is so limited in delineating what types of speech constitute express advocacy. ¶72 If the MCFL Court had seen fit to restrict the appropriate inquiry into only the words of the Special Edition it would have limited its discussion to the dangerous language of the flyer: Everything you need to know to vote pro-life, Vote Pro-Life, and No pro-life candidate can win in November without your vote in September. However, the Court did not. ¶73 than MCFL, 479 U.S. at 243. Id. at 249. Instead, the Court noted that the flyer contained more merely words. photographs of certain determined that the restricted to list a As part of pro-life Buckley of its candidates. express possible 8 message Id. advocacy examples it set contained The test is forth Court not in a No. 98-0596.awb footnote. Rather, the Buckley express advocacy test looks to the essence of the advertisement s purpose. ¶74 In applying the test the "essential nature" of the flyer. not reasonably issues be that regarded necessarily politicians. Id. as Court focused on the It noted that the flyer could a mere raise[s] discussion the names of of public certain The Court noted that the flyer in effect provided the explicit directive to vote for these (named) candidates. flyer s Finally, the Court noted that even if the Id. message was marginally less direct than Vote for Smith its essential nature constituted express advocacy. ¶75 Supreme In light of these writings, I cannot conclude that the Court exclusively intended to a narrow express band advocacy of to be exhortative words. limited Instead based on the MCFL discussion, we are to look at the essential nature of the advertisement: issues, and in the process Is it one that merely discusses discusses candidates inextricably linked to those issues, or is it one that advocates some action for or against discussing a candidate issues? but Ultimately, does the so under question the is guise whether of the advertisement is unambiguously advocating the election or defeat of a named candidate. ¶76 This Buckley, 424 U.S. at 80. approach, labeling advertisements as express advocacy when their essential nature unmistakably advocates for the election or defeat of a candidate, is more congruous with the realities of both advertising and speech. this statement is reinforced with 9 even the The accuracy of most superficial No. 98-0596.awb observations of advertising in general. Few advertisements will directly say Buy Nike rather than Reebok or Drink Maxwell House coffee. Be they in the print or electronic media, advertisements normally do not include a call for action or use magic words to relay their message. Yet every reader, listener, or viewer knows that Less filling, tastes great is an unambiguous Miller beer, exhortation and They re to purchase Gr-r-reat! a particular is Tony type the of Tiger s unambiguous appeal to buy a box of sugar-coated corn flakes. ¶77 The approach delineated by the Supreme Court does not stand for semantic shrewdness. Rather, its approach is to look at the essential nature of the advertisement. Such an approach does not open Pandora s box either, for it only applies to those advertisements susceptible to no other reasonable interpretation than advocating the election or defeat of a candidate. This does not encompass every attempt at influencing the issues of debate through issue advertisements. It only recognizes that those advertisements essential natures must be on issues, not on candidates. ¶78 Under such a standard, there can be no doubt that the advertisements at issue here are really exhortation[s] to vote for or against . . . specific candidate[s]. The essential nature of these advertisements is candidate advocacy, not issue advocacy. These advertisements mention issues only as a vehicle of propping up or tearing down a particular candidate. away references to the candidates and precious anything, would remain of the advertisement. 10 little, Take if No. 98-0596.awb ¶79 These advertisements are about vilifying or venerating a candidate; they are not about issues. There is a picture of a candidate that and a name advertisement. of a candidate Consider, for predominates example, the each following advertisement sponsored by WMC: This year, Wisconsin homeowners received their property taxes cut by almost 17%. No thanks to Senator Alice Clausing. She voted against the largest property tax cut in Wisconsin history. Then Clausing voted against an additional 36 million dollars for schoolsright in her own district. Alice Clausing. Liberal on Taxes . . . Wrong on education. Call Senator Clausing. Tell her to stop voting with those Madison liberals. ¶80 While issues such as taxes and education were discussed in the advertisement, they could not reasonably be considered the advertisement s essential nature. Rather, the essential nature of this advertisement was a directive to the public to vote against Senator election. It candidate. advocates the in the defeat of upcoming See Buckley, 424 U.S. at 80. ¶81 unambiguously Clausing a named WMC also sponsored the following advertisement: What has Gary Drzewiecki done for Northeast Wisconsin? Homeowners will see their property taxes cut by an average of 11.5% Our children s schools will receive millions in additional state aid. And taxpayers will get spending controls on local government. Lower taxes, less spending, better schools. It s a record we can all be proud of. Call Gary Drzewiecki and tell him thanks. Again taxes, education, and spending were issues mentioned in this advertisement. However, it is unreasonable to consider the essential nature of this ad to be anything other than express 11 No. 98-0596.awb advocacy for discussion the of candidate. public This issues that names of certain politicians. was clearly necessarily not a mere raise[d] MCFL, 479 U.S. at 249. the While a directive to call a candidate and thank him may be marginally less direct than Vote for Smith, its essential nature is nonetheless express advocacy. ¶82 I am Finally I address the concurrence of Justice Bablitch. perplexed analysis. whole by the half loaf is better than no loaf I submit that whether we are left with a half loaf, a loaf, or no loaf analysis and conclusions. at all should not drive our legal Our job is to interpret and apply the law based on legal precedents, reason, and common sense. I agree with the concurrence as it addresses the essence of this case but disagree with its bottom-line approach. ¶83 Such an approach undermines rather than achieves the expressed goals of the concurrence. As noted at the outset the majority and dissent are in agreement that no particular magic words are necessary for a communication to constitute express advocacy, that the contextual setting may assist in the consideration of whether an ad is express advocacy, and that Buckley and MCFL constitute the only authority which binds Wisconsin courts on the issue. ¶84 We should decide those issues as to which we agree, acknowledge a divided court on the remaining issues, and remand the case to the court of appeals for a decision on the issues that divide us. The court of appeals may then apply the standard already defined by Buckley and MCFL and adopted by the 12 No. 98-0596.awb majority. By joining the majority s mandate but endorsing the dissent s rationale, the concurrence effectively eliminates the possibility that the standard will ever be applied in this case. ¶85 Additionally, although the concurrence asserts that its decision is driven by a desire to get a speedy answer, the route that it has chosen will delay rather than achieve a prompt resolution. The concurrence invites the Elections Board or the legislature to establish rules, a time-consuming venture that they might not undertake. Most assuredly, any rules would be challenged and again the issue would end up before us to decide. The path espoused by the concurrence results only in further delay. ¶86 I end where I began. to have it both ways. The majority errs in its attempt It upholds the law but then turns around and declines to enforce it. It was required this day to choose which path it wished to follow: apply the express advocacy standard defined by the Supreme Court or, if that standard is too vague, craft a better standard instead. It chose to do neither. I would have followed the Supreme Court s lead and assessed these advertisements standard of Buckley and MCFL. these advertisements are under the essential nature Because under such a standard express advocacy, I respectfully dissent. ¶87 I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON joins this opinion. 13 No. 98-0596.awb 1
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
