FAN 15.1 (First Amendment News) — 7th Cir. Strikes Down Several Sections of Wisconsin’s Campaign Finance Law

The case is Wisconsin Right to Life v. Barland, which was handed down by the 7th Circuit yesterday. Judge Diane Sykes wrote the 84-page opinion, which was joined by Judges Richard Posner and Joel Flaum. The case was successfully argued by James Bopp, Jr. Here is the link to the oral arguments in the case.

And here is the Court’s summary of its ruling:

Corporate-speech ban. Section 11.38(1)(a)1, the ban on political spending by corporations, is unconstitutional under Citizens United.

Cap on corporate fundraising for an affiliated PAC. Section 11.38(1)(a)3, the cap on the amount a corporation may spend on fundraising for an affiliated political committee, is unconstitutional under Citizens United and Barland I.

Regulatory disclaimer. The lengthy disclaimer requirement in GAB § 1.42(5) is unconstitutional as applied to 30-second radio ads and ads of shorter duration.

Definitions of “political purposes” and “political committee.” The statutory definition of “political purposes,” section 11.01(16), and the regulatory definition of “political committee,” GAB § 1.28(1)(a), are unconstitutionally vague and overbroad in the sense meant by Buckley and require a narrowing construction. As applied to political speakers other than candidates, their campaign committees, and political parties, the definitions are limited to express advocacy and its functional equivalent as those terms were explained in Buckley and Wisconsin Right to Life II.

PAC Status and PAC-Like Burdens on Issue-Advocacy Groups. The second sentence of GAB § 1.28(3)(b), which treats issue advocacy during the 30/60-day preelection period as fully regulable express advocacy if it mentions a candidate, is unconstitutional. Similarly, GAB § 1.91, which imposes PAC- like registration, reporting, and other requirements on all organizations that make independent disbursements, is unconstitutional as applied to organizations not engaged in express advocacy as their major purpose.

On remand, the district court was ordered to issue a permanent injunction consistent with the Court’s opinion

BTW: The 7th Circuit’s ruling in Wis. Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 143 (2011), anticipated the Supreme Court’s ruling in McCutcheon v. FEC (2014).

Meanwhile, Professor Rick Hasen has just posted this over at his Election Law Blog: “Leahy Announces June 3 Hearing On Constitutional Amendment To Rein In Massive Campaign Spending” (see press release here).

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