Elections Board of the State of Wisconsin v. Wisconsin Manufacturers & Commerce

Elections Board of the State of Wisconsin v. Wisconsin Manufacturers & Commerce
Campaign Finance Reform

In 1999, the Brennan Center was lead counsel for a prominent state senator in five related cases in federal and state court regarding Wisconsin’s regulation of issue expenditures. The Center refuted the claim of the Wisconsin Manufacturers and Commerce (WMC) that express advocacy can be determined solely on the basis of “magic words” that blatantly endorse or oppose a candidate, stating that the “essential nature” of the message—regardless of the actual words used—is what is vital. The Wisconsin Supreme Court recognized that the Elections Board had the authority to promulgate regulations governing advertisements that refer to candidates, but do not use the magic words, as express advocacy. It ruled, however, that advertisers lacked fair warning that their ads could qualify as “express advocacy” subject to regulation under campaign finance laws pursuant to the Board’s context-based approach. The Court also held that the Board engaged in retroactive rulemaking in attempting to apply such an approach, in violation of due process.