Last Thursday, the Wisconsin Supreme Court stopped a state investigation that sought to determine whether Gov. Scott Walker’s campaign team illegally collaborated with “independent” groups that spent millions supporting him in his 2012 recall election victory. The Court held that rules preventing such collaboration are unconstitutional when applied to groups that run campaign ads without explicitly asking viewers to vote for or against a candidate. The decision badly misinterprets federal precedent and severely undercuts common-sense campaign finance rules in Wisconsin. It also reiterates a trend we’ve seen over the last five years: Citizens United, which allowed unlimited independent spending by corporations, has led to a spike in election spending even from groups with close ties to candidates.
Under longstanding federal precedent, the state may limit contributions directly to candidates, but may not limit spending on campaign ads by outside groups or individuals — that’s why “independent” super PACs are beginning to dominate elections. But the distinction between contributions and independent spending doesn’t work if you allow candidates to control an outside group; the candidate will just ask contributors to give big money to an outside group and treat the money as her own.
That’s where Wisconsin’s rules come in — like the federal government and most states, Wisconsin has laws to prevent candidates from controlling outside groups. The Wisconsin Supreme Court has now undone these rules by holding that they are only enforceable if the groups’ money is spent on ads expressly advocating a candidate’s election or defeat.
The result is that contribution limits will be meaningless in Wisconsin, at least for well-funded spenders advised by lawyers. As some groups allegedly did in this case, they will simply take orders from a candidate and then run advertisements that say something like “Scott Walker is an American hero” instead of “vote for Scott Walker.” Such manipulation is not difficult, and groups may prefer to run such ads anyway: the Federal Election Commission has noted that candidates usually avoid explicitly asking for a vote in TV ads. But while sophisticated groups can engage in this circumvention and hide their donors if they choose, most people will still face the standard limits and disclosure laws, a fact that may undercut the Wisconsin Court’s concern that the disputed law “would require an individual to surrender his political rights to the government and retain campaign finance attorneys before discussing salient political issues.”
The decision is also a reminder that in a few short years, Citizens United has opened the door to a new world of deregulation far beyond what the Supreme Court purported to allow. The Citizen United majority constantly reiterated that its holding applied to independent spending, and that “the absence of prearrangement and coordination” with a candidate “alleviates the danger that expenditures will be given as a quid pro quo.” The Court’s vision of independence doesn’t have much application to today’s campaign spending, and has not resonated with some lower courts. The Wisconsin Court’s majority cited Citizens United in support of its notion that the U.S. Supreme Court has disallowed regulation of express advocacy, failing to honestly contemplate the high Court’s words on independence.
The likely effects aren’t too difficult to discern. Florida already has laws similar to the law that will apply in Wisconsin after Thursday’s ruling. As of last September, 96% of television ad spending on the governor’s race came from outside groups that spent without limit. Candidates routinely worked with those groups, raised money for them, and appeared in their ads, making contribution limits an inoperable relic, at least for political insiders.
Wisconsin’s Supreme Court framed this case in stark terms, promising that if it were to allow the state to pursue its “theories of law that do not exist,” it would “assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours.” In fact, the federal government and many other states have long enforced laws just like Wisconsin’s, and we have yet to hear of paramilitary-style invasions even after sunrise (other than the disputed allegations in this case). Yet this decision almost certainly assures that Wisconsin voters will see a wave of money from well-financed groups that have something to gain from spending big.